Agreements of the Company. 5.1 The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement. 5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC. 5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement. 5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request. 5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.
Appears in 4 contracts
Samples: Distribution Agreement (Excelsior Venture Partners Fund Iii LLC), Distribution Agreement (Excelsior Venture Partners Iii LLC), Distribution Agreement (Excelsior Venture Partners Iii LLC)
Agreements of the Company. 5.1 The Company will nothereby (a) agrees that except as expressly provided in Sections 1 and 2 hereof, either prior nothing in this Agreement shall constitute a waiver by the Holders of any Triggering Event or Equity Condition Failure which may be continuing on the date hereof or may occur after the date hereof and (b) affirms that the Company's obligation to comply with the Effective Date or thereafter during such period as Mandatory Redemption Provision arises upon the Prospectus is required by law to be delivered in connection with sales last day of the UnitsExtension Period, file with respect to all then outstanding shares of the Series A Preferred Stock. Except as provided herein, each Holder reserves the right, in its discretion, to exercise any amendment or supplement all rights or remedies under the Certificate of Designation, the other Transaction Documents, applicable law and otherwise as a result of any Triggering Event or Equity Condition Failure that may be continuing on the date hereof or any Triggering Event that may occur after the date hereof, and each Holder has not waived any of such rights or remedies. Except as expressly provided in this Agreement, no delay on the Holder’s part in exercising such rights or remedies, should be construed as a waiver of any such rights or remedies. Upon the last day of the Extension Period, the agreement of the Holders to the Registration Statement or the Prospectus, whether waive any of its remedies and rights pursuant to Section 2 hereof shall automatically and without further action terminate and be of no force and effect, it being understood and agreed that the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted effect of such termination will be to permit the Distributor within a reasonable period Holders to seek to exercise any and all of its rights and remedies at any time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments thereafter, including, without limitation, the right to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and require redemption of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney portion of the Company of Series A Preferred Stock and exercise any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, rights and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be remedies set forth in the Prospectus in order to make any statement thereinCertificate of Designation, the other Transaction Documents, applicable law or otherwise, 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributoreach case, without chargeany notice, such number passage of copies thereof as the Distributor may reasonably requesttime or forbearance of any kind.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.
Appears in 3 contracts
Samples: Waiver Agreement (American Defense Systems Inc), Waiver Agreement (American Defense Systems Inc), Waiver Agreement (American Defense Systems Inc)
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Underwriters:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriters and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet for the Securities containing only a description of the Securities, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise the Representatives promptly and, if requested by the Representatives, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon the Representatives’ reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by the Underwriters, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to each Underwriter, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to each Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as such Underwriter may reasonably request.
(h) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(i) Prior to any public offering of the Securities, to cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Representatives may request, to continue such qualification in effect so long as required for distribution of the Securities 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(k) If at any time during the five-year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the Distributor record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor will 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (vi) the rating agencies in connection with the ratings of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell Units only or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities; provided, however, the Company may, at any time, offer or sell or announce the offering of commercial paper issued in such states the ordinary course of business.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(o) To use its best efforts to do and perform all things required or jurisdictions necessary to be 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 Securities.
(p) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with such restrictions and requirementsany stabilization or manipulation of the price of the Securities.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Agent that:
(a) At any time during an Offering Period or during the time a prospectus relating to the Effective Date or thereafter during such period as the Prospectus Notes is required by law to be delivered in connection with sales of under the UnitsAct, file any amendment prior to amending or supplement to supplementing the Registration Statement or the Prospectus, whether the Company will furnish the Agent and the Agent's counsel with a copy of each proposed amendment or supplement (other than an amendment or supplement to be made pursuant to incorporation by reference of a document filed under the 1933 Exchange Act, 1940 Act or otherwise, unless a copy Pricing Supplement or an amendment or supplement relating solely to an offering of debt securities other than the Notes). The Company will promptly cause the Prospectus together with each amendment thereof shall first have been submitted or supplement thereto to be transmitted to the Distributor within Commission for filing pursuant to Rule 424(b) by an appropriate method or will promptly cause the Prospectus together with each amendment thereof or supplement thereto to be filed with the Commission pursuant to said Rule. If the Prospectus is amended or supplemented (other than a reasonable period Pricing Supplement or an amendment or supplement relating solely to an offering of time prior debt securities other than the Notes), the Agent shall be furnished with such information relating to the such filing thereof as it may reasonably request, and the Distributor shall not have objected thereto in good faith. The Distributor may but Agent shall not be obligated to propose from time solicit offers to time purchase Notes so long as it is not reasonably satisfied that such amendment or amendments supplement complies in all material respects with the provisions of the Act and the Exchange Act. At any time during an Offering Period or during the time a prospectus relating to the Notes is required to be delivered under the Act, the Company will promptly advise the Agent of (i) the filing of any amendment or supplement to the Prospectus (other than a Pricing Supplement or an amendment or supplement relating solely to an offering of debt securities other than the Notes), (ii) the filing or effectiveness of any amendment to the Registration Statement and such supplement or supplements to Statement, (iii) the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request comments from Distributor to do sothe Commission relating to, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request requests by the SEC for amendments or supplements to Commission for, any amendment of the Registration Statement or any amendment of or supplement to the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of the receipt by the Company or of any representative or attorney notification with respect to the suspension of the Company qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any other communication from proceeding for such purpose. The Company will use its reasonable best efforts to prevent the SEC issuance of any such stop order or notice of suspension of qualification and, if issued, to obtain as soon as possible the withdrawal thereof. Upon the Agent's request, the Company will within a reasonable time inform the Agent of the aggregate principal amount of Notes registered under the Registration Statement that remain unissued.
(b) Within the time during which a prospectus relating to the CompanyNotes is required to be delivered under the Act, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all requirements imposed upon it by the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective DateAct, as now and hereafter amended, and thereafter by the rules and regulations of the Commission thereunder, as from time to timetime in force, so far as necessary to permit the Company will deliver to continuance of sales of or dealings in the Distributor, without charge Notes as contemplated by the provisions hereof and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably requestProspectus. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.occurs as
Appears in 2 contracts
Samples: Distribution Agreement (Citigroup Capital Ix), Distribution Agreement (Citigroup Capital Ix)
Agreements of the Company. 5.1 The Company agrees with the several Purchasers that:
(a) The Company will notadvise you promptly of any proposal to amend or supplement the Registration Statement, either any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus with respect to any Purchased Debt Securities, and will furnish you a copy thereof prior to the Effective Date or thereafter during such period as filing thereof with the Prospectus is required by law Commission.
(b) The Company will furnish to be delivered in connection with sales you copies of the Units, file any amendment or supplement registration statement relating to the Registration Statement or Debt Securities as originally filed and all amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related Pre-Pricing Prospectus, whether pursuant Permitted Free Writing Prospectus, Prospectus, and all amendments and supplements to such documents (except amendments to exhibits and supplements relating to Debt Securities that are not Purchased Debt Securities), in each case as soon as available and in such quantities as you reasonably request for the 1933 purposes contemplated by the Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of .
(c) If at any time prior to the filing thereof and of the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated Prospectus, with respect to propose from time to time such amendment or amendments each Pre-Pricing Prospectus or, thereafter, with respect to the Registration Statement and such supplement or supplements Prospectus, when a prospectus relating to the Purchased Debt Securities is required to be conveyed under the Act or the Rules and Regulations, any event occurs as a result of which such Pre-Pricing Prospectus asor the Prospectus, in the light of future developmentsas applicable, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been as then amended or supplemented and when would include any post-effective amendment thereto becomes effective; (ii) untrue statement of any request by the SEC for amendments a material fact, or supplements omit to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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 at any time to amend or supplement such Pre-Pricing Prospectus or amend the Prospectus Prospectus, as applicable, to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Purchasers and promptly prepare and duly file with the SEC Commission an amendment or supplement to the Registration Statement or any appropriate supplement filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and convey in connection therewith, such Pre-Pricing Prospectus or Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations; provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company’s obligation under this Section 4(c)); provided further, that any such Pre-Pricing Prospectus or Prospectus or amendment thereto, or supplement required later than nine months from the date hereof shall be furnished at the Purchasers’ sole expense.
(d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Debt Securities for offering and sale under the securities laws of any state or jurisdiction of the United States as the Purchasers may reasonably request and will deliver use its best efforts to continue such qualification in effect so long as required for the Distributordistribution of the Purchased Debt Securities; provided, without chargehowever, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such number of copies thereof as state or jurisdiction or to comply with any other requirement deemed by the Distributor may reasonably requestCompany to be unduly burdensome.
5.5 At (e) The Company will make generally available to its own expensesecurity holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement.
(f) For a period of one year, the Company agrees will furnish to prepare, executeyou copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and file copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any and all documents and information filed by the Company on the Commission’s EXXXX system will be deemed furnished to take all actions that may be reasonably necessary you in connection with satisfaction of this clause (f).
(g) The Company will apply the qualification net proceeds from the offering of the Units for sale Purchased Debt Securities as set forth under the caption “Use of proceeds” in such states as Distributor may designate. Concurrent with the Prospectus Supplement.
(h) If a public offering of the Purchased Debt Securities is to be made, the Company will not offer or sell any of its other debt securities which are substantially similar to the Purchased Debt Securities prior to ten business days after the Closing Date without the consent of the Purchasers.
(i) The Company will 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 use of any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, of the suspension of the qualification of the Purchased Debt Securities for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, or suspending any such qualification, promptly to use its reasonable best efforts to obtain the prompt withdrawal of such order.
(j) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of [ ] on behalf of the Purchasers, it will not make, any offer relating to the Purchased Debt Securities that would constitute an “issuer free writing prospectus” (as defined in Rule 433 of the Act) 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; provided that the prior written consent of [ ] on behalf of the Purchasers shall provide be deemed to have been given in respect of the Distributor in Permitted Free Writing Prospectuses. The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an issuer free writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable theretoprospectus, and (ii) has complied and will comply, as the Distributor will sell Units only case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in such states or jurisdictions respect of timely filing with the Commission, legending and in compliance with such restrictions and requirementsrecord keeping.
Appears in 2 contracts
Samples: Purchase Agreement (Empire District Electric Co), Purchase Agreement (Empire District Electric Trust Ii)
Agreements of the Company. 5.1 The Company will notagrees with the Underwriter:
(a) To file with the Commission, not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by the Act then (i) if the Registration Statement, as it may have been amended, has been declared by the Commission to be effective under the Act, either (A) if the Company relies on Rule 434 under the Act, a Term Sheet relating to the Securities that shall identify the Preliminary Prospectus that it supplements containing such information as is required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the Company does not rely on Rule 434 under the Act, a Prospectus in the form most recently included in an amendment to the Registration Statement (or, if no such amendment shall have been filed, in the Registration Statement), with such changes or insertions as are required by Rule 430A under the Act or permitted by Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of this sentence, as have been provided to and approved by the Representatives prior to the Effective Date execution of this Agreement, or thereafter during such period (ii) if the Registration Statement, as it may have been amended, has not been declared by the Prospectus is required by law Commission to be delivered in connection with sales effective under the Act, an amendment to the Registration Statement, including a form of Prospectus, a copy of which amendment has been furnished to and approved by the Units, file any Representatives prior to the execution of this Agreement; to make no amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time Prospectus prior to the filing thereof and the Distributor any Delivery Date which shall not have objected thereto in good faith. The Distributor may but shall not be obligated reasonably disapproved by you promptly after reasonable notice thereof; to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus asadvise you, in the light of future developmentspromptly after it receives notice thereof, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject time when any amendment to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or supplemented and when of any post-effective amendment thereto becomes effective; (ii) order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, of any request by the SEC Commission for amendments the amending or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness supplementing of the Registration Statement or Prospectus or for additional information and, in the initiation event of the issuance of any proceedings for that purpose stop order or the threat thereof; (iv) of the happening of any event that in order preventing or suspending the judgment use of the Company makes any statement made in the Registration Statement Preliminary Prospectus or the Prospectus untrue or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such actions as you may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities but in no case for more than one year from the date hereof, provided that requires in connection therewith the making Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any changes in jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the Registration Statement or business day next succeeding the date of this Agreement, and from time to time to furnish you with copies of the Prospectus in Richmond, Virginia in such quantities as you may reasonably request at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering and sale of the Securities, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was madethey were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or if it is necessary to supplement or amend the Prospectus to comply with lawthe Act, the Company will forthwith to notify you and upon your request to file such document and to prepare and duly file with the SEC furnish without charge to you and to any dealer in securities as many copies as you may from time to time reasonably request of an appropriate amended Prospectus or a supplement or amendment thereto, and will deliver to the Distributor, without charge, Prospectus which will correct such number of copies thereof statement or omission or effect such compliance;
(d) As soon as practicable after the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness effective date of the Registration Statement, to make generally available to its shareholders and to deliver to you, an earnings statement of the Company, conforming with the requirements of Section 11(a) of the Act and Rule 158 under the Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) For a period of 180 days from the date of the Prospectus, not to directly or indirectly offer, sell or otherwise dispose of any shares of Common Stock or Preferred Stock or any securities convertible into or exercisable or exchangeable for, or any rights to purchase or acquire shares of Common Stock or Preferred Stock, or any other securities of the Company shall provide (other than the Securities or pursuant to employee stock option plans or pursuant to options, warrants or rights outstanding immediately following the First Delivery Date or pursuant to bona fide gifts to persons who agree in writing with the donor to be bound by this restriction), without your prior written consent;
(f) During a period of five years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to shareholders, 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 or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;
(g) To apply the net proceeds from the sale of the Securities for the purposes set forth in the Prospectus; and
(h) To cause the Securities to be duly included for quotation on The Nasdaq Stock Market's SmallCap Market ("Nasdaq") prior to the Distributor in writing First Delivery Date; and to ensure that the Securities remain included for quotation on Nasdaq or a list national securities exchange following the First Delivery Date for a period which is the earlier of those states and other jurisdictions in which 36 months or until such time as the Units are qualified for sale, together with restrictions and requirements applicable thereto, and Company no longer has a class of equity securities registered under the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsExchange Act.
Appears in 2 contracts
Samples: Underwriting Agreement (Matewan Bancshares Inc), Underwriting Agreement (Matewan Bancshares Inc)
Agreements of the Company. 5.1 The Company covenants and agrees with each Underwriter as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsOffered ADSs by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Underwriters promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriters, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECUnderwriters, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to the Distributoreach Underwriter, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Offered ADSs may reasonably requestbe sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Distributoreach Underwriter, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor each Underwriter may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify the Representative and, if requested by the Representative, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company agrees will cooperate with the Underwriters and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriters may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants).
(h) The Company will make generally available to holders of its securities as soon as may designate. Concurrent be practicable an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriters or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NYSE, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriters), and (xi) all other costs and expenses of the Underwriters incident to the performance of its obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriters (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Company be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $75,000 in the aggregate.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and sale of the Offered ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of the Representative, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company, including Ordinary Shares and ADSs, or any other securities convertible into or exchangeable for its Ordinary Shares, ADSs or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement or pursuant to a strategic partnership with a customer) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any equity securities of the Company, including Ordinary Shares and ADSs, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares, ADSs or other securities, in cash or otherwise.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of the Representative, grant options to purchase Ordinary Shares or ADSs at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Representative, other than registration statements on Form S-8.
(n) The Company will cause each of its executive officers and directors to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of the Representative, sell, contract to sell or otherwise dispose of any ADSs or Ordinary Shares or rights to acquire such shares according to the terms set forth in Schedule IV hereto.
(o) Prior to the termination of the Option, the Company shall provide not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Distributor in writing a list Company or any Subsidiary, the financial condition, results of those states and other jurisdictions in which operations, business, properties, assets, or liabilities of the Units are qualified for saleCompany or any Subsidiary, together with restrictions and requirements applicable theretoor the offering of the Offered ADSs, without prior notice to the Representative.
(p) The Company will use its best efforts to cause the Offered ADSs and the Distributor will sell Units only in Underlying Shares to be listed on the NYSE and to maintain such states or jurisdictions and in compliance with such restrictions and requirementslisting on the NYSE.
Appears in 2 contracts
Samples: Underwriting Agreement (Sequans Communications), Underwriting Agreement (Sequans Communications)
Agreements of the Company. 5.1 The Company agrees with the Initial Purchasers as follows:
(a) The Company will not, either prior to advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchasers promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do sothem, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, within the period of time referred to in paragraph (ie) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) below, of any request by change in the SEC for amendments Company's condition (financial or supplements to the Registration Statement other), business, prospects, properties, net worth or the Prospectus results of operations, or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company event, which makes any statement made in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) 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 Offering Memorandum (vas then amended or supplemented) of receipt by the Company or to comply with any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEClaw.
5.3 (b) The Company will comply with all furnish to the provisions Initial Purchasers, without charge, as of any undertakings contained in the Registration Statementdate of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
5.4 On (c) The Company will not make any amendment or supplement to the Effective DatePreliminary Offering Memorandum or to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised or file any document which upon filing becomes an Incorporated Document, without delivering a copy of such document to the Initial Purchasers, prior to or concurrently with such filing.
(d) Prior to the execution and thereafter from time to timedelivery of this Agreement, the Company has delivered or will deliver to the DistributorInitial Purchasers, without charge and charge, in a timely mannersuch quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, as many copies of the Prospectus Preliminary Offering Memorandum. The Company consents to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Offering Memorandum (and of any printed supplemental material as amendment or supplement thereto) in accordance with the Distributor securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may reasonably request. If during such period be sold, in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event shall occur that in the judgment of the Company or in the Distributor opinion of counsel for the Initial Purchasers should be set forth in the Prospectus Offering Memorandum (as then amended or supplemented) in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum, or to file under the Exchange Act any document which upon filing becomes an Incorporated Document, to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment theretothereto or such document, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchasers and dealers a reasonable number of copies thereof as thereof. In the Distributor may reasonably requestevent that the Company and the Initial Purchasers agree that the Offering Memorandum should be amended or supplemented, or that a document should be filed under the Exchange Act which upon filing becomes an Incorporated Document, the Company, if requested by the Initial Purchasers, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement or such document.
5.5 At its own expense, (f) The Company will cooperate with the Company agrees to prepare, execute, Initial Purchasers and file any and all documents and to take all actions that may be reasonably necessary with their counsel in connection with the qualification of the Units Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such 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 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.
(g) So long as any of the Notes are outstanding, the Company will furnish to the Initial Purchasers (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 the Initial Purchasers may request.
(h) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than pursuant to Section 10 hereof or by notice given by the Initial Purchasers terminating this Agreement pursuant to Section 9 or Section 11 hereof) or if this Agreement shall be terminated by the Initial Purchasers 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 Initial Purchasers for all out-of-pocket expenses (including fees and expenses of its 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.
(i) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum.
(j) Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, 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 Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company will not distribute any offering material in connection with the Exempt Resales.
(k) The Company will use its best efforts to cause the Notes to be eligible for trading on The PORTAL Market.
(l) From and after the Closing Date, so long as any of the Notes are outstanding and are "Restricted Securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(m) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in such states respect of any security (as Distributor may designate. Concurrent defined in the Act) that would be integrated with the effectiveness sale of the Notes in a manner that would require the registration under the Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Notes.
(n) The Company agrees to comply with all of the terms and conditions of the Registration StatementRights Agreement, and all agreements set forth in representation letters of the Company to DTC relating to the approval of the Notes by DTC for "book entry" transfer.
(o) The Company agrees that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Company Indenture shall provide be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and will cause to the Distributor be entered into any necessary supplemental indentures in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsconnection therewith.
Appears in 2 contracts
Samples: Purchase Agreement (Integrated Health Services Inc), Purchase Agreement (Integrated Health Services Inc)
Agreements of the Company. 5.1 The Company will notagrees with the Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any it is necessary for a post-effective amendment or supplement to the Registration Statement to be declared or to become effective before the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion offering of the Distributor's counselSecurities may commence, be necessary or advisable. Subject the Company will use its best efforts to Section 5.4cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soRepresentatives, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any immediately after such post-effective amendment thereto becomes has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) 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 or the circumstances then prevailing not misleading or (y) conflict with the information contained in the Registration Statement, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments, or request by the SEC Commission or its staff on or for amendments an amendment of or supplements a supplement to the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or for additional informationinformation regarding the Company, and of all action by the SEC with respect to any amendment to any Registration Statement its affiliates or Prospectus that may be filed from time to time its filings with the SECCommission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that such purpose or any examination pursuant to Section 8(e) of the threat thereofAct relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Securities; (iii) 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 institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event that event, which results in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements 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 the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) The Company will furnish to the Representatives and counsel to the Representatives, without charge: (i) ten (10) 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 the Underwriters may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) ten (10) copies of the exhibits to the Incorporated Documents. The Company will pay all of the expenses of printing or other production of all documents relating to the offering.
(e) 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 the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Execution Time to the Closing Time and will furnish the Representatives with all the provisions copies of any undertakings contained in the Registration Statementsuch documents a reasonable amount of time prior to such proposed filing.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and the Company will expeditiously deliver to the DistributorUnderwriters and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any printed supplemental material Issuer Free Writing Prospectus as the Distributor Representatives 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 Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by any Underwriters or dealers. If during such period of time time: (i) any event shall occur that as a result of which, in the judgment of the Company Company, or the Distributor should be set forth in the opinion of counsel for the Underwriters, the Prospectus in order as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make any statement the statements therein, in the light of the circumstances under which it was madewhen the Prospectus is delivered to a purchaser, not misleading, ; or (ii) if it is necessary to supplement the Prospectus or amend the Prospectus Registration Statement (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Company will promptly notify the Representatives of such event and forthwith prepare and duly and, subject to the provisions of paragraph (e) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and the Representatives agree that the Prospectus should be amended or supplemented, the Company, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will: (i) cooperate with the Underwriters and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Distributor Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Securities; (iii) pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; and (iv) file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(t) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. 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 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will make generally available to its security holders and to the Representatives a consolidated earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of this Agreement 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.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Company will furnish to the Representatives: (i) as soon as available, if requested, 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 the Representatives may reasonably request.
5.5 At its own expense(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof, or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection comply with the qualification terms or fulfill any of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness conditions of the Registration Statementthis Agreement, the Company shall provide reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Securities substantially in accordance with the description set forth in the Prospectus.
(m) If Rule 430A, 430B or 430C of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise the Underwriters of the time and manner of such filing.
(n) 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, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(o) The Company will comply and will use its best efforts to cause its tenants to comply in all material respects with all applicable Environmental Laws (as hereinafter defined).
(p) The Company will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and to continue to have each of its corporate subsidiaries (other than its taxable REIT subsidiaries) comply with all applicable laws and regulations necessary to maintain a status as a REIT or a “qualified REIT subsidiary” under the Code.
(q) The Company will use all reasonable best efforts to do or perform all things required to be done or performed by the Company prior to the Distributor Closing Date to satisfy all conditions precedent to the delivery of the Securities pursuant to this Agreement.
(r) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in writing the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, directly or indirectly, including the filing (or participation in the filing) of a list registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of those states Section 16 of the Exchange Act on, any debt securities or guarantees thereon (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.
(s) The Company will comply with all applicable securities and other jurisdictions in which applicable laws, rules and regulations, including, without limitation, the Units are qualified for sale, together with restrictions and requirements applicable theretoXxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and will use its best efforts to cause the Distributor Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(t) Unless requested otherwise by the Representatives, the Company will sell Units only prepare a final term sheet, containing solely a description of the final terms of the Securities and the offering thereof, in the form attached hereto or as previously provided to, and approved by the Representatives and will file such states or jurisdictions final term sheet with the Commission as soon as practical after the Execution Time. The Company will file any other Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act and will pay any required registration fee for this offering pursuant to Rule 456(b)(1) under the Act within the time period required by such rule (without regard to the proviso therein relating to the four (4) Business Days extension to the payment deadline) and in compliance any event prior to the Closing Date. The Company will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with such restrictions and requirementsthe Commission in accordance with Rule 433(g) under the Act.
Appears in 2 contracts
Samples: Underwriting Agreement (National Retail Properties, Inc.), Underwriting Agreement (National Retail Properties, Inc.)
Agreements of the Company. 5.1 The Company agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales sale of the UnitsShares by the Underwriter or a dealer, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor promptly, Representative and will confirm such advice in writing, its counsel promptly (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; , (ivii) of the happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; , and (viii) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts If at any time the Commission issues any stop order suspending the effectiveness of the SEC staff shall not be deemed actions Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of or requests by such order at the SECearliest possible moment.
5.3 (c) The Company will furnish to the Representative or its counsel, without charge, two signed final copies of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the (e) The Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many copies of the Prospectus and or any printed supplemental material amendment or supplement thereto as the Distributor Representative may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that that, in the reasonable judgment of the Company or counsel to the Distributor Underwriters, should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, thereto and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Underwriter may reasonably request.
5.5 At its own expense, (f) The Company will cooperate with the Company agrees Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative may reasonably request; provided, however, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Representative and each other underwriter who may so request copies of such states financial statements and other periodic and special reports as Distributor the Company may designate. Concurrent from time to time distribute generally to the holders of any class of its capital stock and will furnish to the Representative and each other Underwriter who may so request a copy of each annual or other report it shall be required to file with the effectiveness Commission.
(h) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the 15th 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 commencing after the Effective Date and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) The Company will cause its common stock, including the Shares, and the Warrants to be accepted for listing on the National Association of Securities Dealers Automatic Quotation ("NASDAQ") SmallCap Market System effective concurrently with the closing of the Offering.
(j) 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 Representative, 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 the exhibits thereto, the Prospectus and any amendment or supplement to the Registration Statement or Prospectus, (ii) the preparation and delivery of certificates representing the Shares, (iii) the photocopying of this Agreement, the Agreement among Underwriters, any Dealer Agreements and any Underwriters' Questionnaires, (iv) printing and furnishing to the Underwriters (including costs of shipping and mailing) such copies of the Registration Statement, the Company shall provide Prospectus and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the quotation of the Shares and the Warrants on NASDAQ, (vi) the fees payable to the Distributor in writing a list NASD relating to any filings required to be made by the Underwriters with the NASD, (vii) the registration or qualification of those states the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f), including the state registration and/or filing fees, disbursements and other jurisdictions charges of counsel to the Underwriters in which the Units are qualified for sale, together with restrictions and requirements applicable theretoconnection therewith, and the Distributor preparation (but not including legal fees associated with such preparation) and photocopying of preliminary, supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided in subparagraph (k) below), (ix) the transfer agent for the Shares, and (x) the Company's meal and travel expenses related to "road show" meetings.
(k) If for any reason the Offering is not completed, the Company will reimburse you for all out-of-pocket expenses (including the fees, disbursements and other charges of your counsel, as described in the letter entitled "Statement of Services Anticipated to be Performed in Connection with Proposed Financing for the Bank Holdings" dated as of November 19, 2003, to which the Company, you and your counsel are parties) reasonably incurred by them in connection herewith.
(l) The Company will not at any time, directly or indirectly, take any action designed, or that might reasonably be expected, to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(m) The Company will apply the net proceeds from the Offering to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(n) The Company will not, and will cause each of its officers, directors and certain shareholders designated by the Representative to enter into agreements with the Representative to the effect that such officer, director or shareholder, as the case may be, will not, without the prior written consent of the Representative, sell, contract to sell, sell Units only in short or otherwise dispose of any shares of Common Stock or other capital stock of the Company or any other securities exchangeable for or convertible into Common Stock for a period of one hundred eighty (180) days after the Effective Date, except (i) directors, officers and such states or jurisdictions and in compliance with shareholders designated by the Representative may make bona fide gifts to donees who agree to be bound by such restrictions and requirements(ii) the Company may issue Common Stock or options to purchase Common Stock under the Company's stock option plan and employee stock purchase plan described in the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Bank Holdings), Underwriting Agreement (Bank Holdings)
Agreements of the Company. 5.1 The Company will notagrees with the several ------------------------- Managers as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any amendment or supplement to it is necessary for the Registration Statement or a post-effective amendment thereto or any Rule 462(b) Registration Statement to be declared effective before the Prospectusoffering of the Shares may commence, whether pursuant the Company will endeavor to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4will advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-such post- effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectus or the Prospectus Prospectuses or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are madenecessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, not misleading; the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) six 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, and of any Rule 462(b) Registration Statement and any amendment 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, and of any Rule 462(b) Registration Statement and any amendment thereto, as you may reasonably request, and (viv) of receipt by the Company or any representative or attorney six copies of the Company of any other communication from the SEC relating exhibits to the Company, Incorporated Documents.
(d) The Company will not file any amendment to the Registration Statement, any preliminary prospectusRule 462(b) Registration Statement or amendment thereto, or make any amendment or supplement to the Prospectuses or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the International Prepricing Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply consents to the use, in accordance with all the provisions of any undertakings contained the Act and with the securities laws of the jurisdictions in which the Registration StatementShares 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.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the Managers a prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer, the Company will expeditiously deliver to the Distributoreach Manager and each dealer, without charge and in a timely mannercharge, as many copies of the International Prospectus (and of any printed supplemental material amendment or supplement thereto) as the Distributor 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 with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the Distributor should opinion of counsel for the Managers is required to be set forth in the International Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the International Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Managers and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Lead Managers for the Distributor 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 proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Managers in connection with the registration or qualification of the Shares for offering and sale by the several Managers and by dealers under the securities laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering the period specified by Section 11(a) of the Act and Rule 158 thereunder, as soon as reasonably practicable, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(i) During the period of five years hereafter, the Company will furnish to you (i) upon your request, at such address as you may specify, 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.
5.5 At its own expense(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 Stockholders to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to prepare, execute, reimburse the Lead Managers for all out-of-pocket expenses (including reasonable fees and file any and all documents and to take all actions that may be reasonably necessary expenses of counsel for the Managers) incurred by you in connection with the qualification herewith.
(k) If Rule 430A of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration StatementAct is employed, the Company shall provide 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) Except as provided in this Agreement, the Company will not sell, contract to sell or otherwise dispose of any Common Stock (except shares issued upon exercises of options outstanding under the Company's 1992 stock option plan or upon exercise of outstanding warrants) or any securities convertible into or exercisable or exchangeable for Common Stock, or grant any options (except any options granted under the Company's 1992 stock option plan) or warrants to purchase Common Stock, for a period of 120 days after the date of the International Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.
(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 listed on Schedule III hereto.
(n) Except as stated in this 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.
(o) The Company will use all reasonable efforts to satisfy on or before the Closing Date all conditions to the Distributor in writing a list of those states and other jurisdictions in which Managers' obligations to purchase the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsShares.
Appears in 2 contracts
Samples: International Underwriting Agreement (Furniture Brands International Inc), International Underwriting Agreement (Apollo Investment Fund L P)
Agreements of the Company. 5.1 The Company will not, either prior agrees that: -------------------------
(a) Prior to the Effective Date or thereafter during such period as effective date of the Prospectus Registration Statement and at any time when a prospectus relating to the Debentures is required by law to be delivered in connection with sales of under the UnitsAct or the Rules and Regulations, the Company will not file or make any amendment or post-effective amendment to the Registration Statement or any amendment or supplement to the Registration Statement or Prospectus to which the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof Underwriter shall first have been submitted to the Distributor reasonably object in writing within a reasonable period of time prior to the filing two business days after being furnished copies thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time following reasonable telephonic notice of such amendment or amendments supplement from the Company to the Underwriter.
(b) The Company will use its commercially reasonable best efforts to cause the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, become effective and will advise the Underwriter immediately and confirm such that advice in writing, writing (i) when of the effectiveness of the Registration Statement has been amended Statement, or supplemented and when any post-effective amendment thereto becomes effective; thereto, (ii) of any request by of the SEC for amendments Commission to amend or supplements to supplement the Registration Statement or the Prospectus Prospectus, or for to provide additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of the qualification of the Debentures for sale in any state or other jurisdiction, or of the initiation or threat of any proceedings proceeding for that purpose any such purpose. The Company will use its best efforts to prevent the issuance of any stop order or suspension order and to obtain the threat thereof; withdrawal of any such stop order or suspension order.
(ivc) The Company will promptly deliver to the Underwriter without charge, (i) three copies of the happening Registration Statement, as originally filed, and of each amendment thereto, and of each post-effective amendment thereto filed at any event that in time when a prospectus relating to the judgment Debentures is required to be delivered under the Act, at least two of which have been signed by the proper officers and at least a majority of directors of the Company makes any statement made Company, either directly or by their attorney(s)-in-fact and include a signed copy of each consent and certificate of experts named in the Registration Statement Statement, together with all exhibits filed therewith or incorporated by reference therein and (ii) such number of conformed copies of the Registration Statement, as originally filed, and of each amendment thereto, and of each post-effective amendment thereto filed at any time when a prospectus relating to the Debentures is required to be delivered under the Act or the Prospectus untrue or that requires Rules and Regulations (in each such case excluding exhibits), as the making Underwriter may reasonably require. The Company will promptly deliver, without charge, to the Underwriter and such others whose names and addresses are designated by the Underwriter: (A) from time to time until the effective date of the Registration Statement, as many printed copies of any changes in preliminary prospectus filed with the Commission prior to the effective date of the Registration Statement as the Underwriter may reasonably request; and (B) as soon as possible after the Registration Statement becomes effective, and from time to time thereafter, as many printed copies of the Prospectus and of any amended or supplemented Prospectus as the Underwriter may reasonably request.
(d) The Company will comply to the best of its ability with the Act, the Trust Indenture Act and the Exchange Act and the Rules and Regulations so as to permit the continuance of sales of and dealings in the Debentures and Common Stock under the Act, the Trust Indenture Act and the Exchange Act, and will keep current in the filing of all reports and forms required to be filed with any regulatory authority having jurisdiction over the Company.
(e) If at any time when a prospectus relating to the Debentures is required to be delivered under the Act or the Rules and Regulations, any event occurs as a result of which the Prospectus in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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 at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Underwriter and promptly prepare and duly file with the SEC Commission an amendment or supplement to the Registration Statement or an appropriate supplement filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment theretowhich will effect such compliance, and will deliver in connection therewith, such Prospectus or Prospectuses to the Distributor, without charge, Underwriter in such number quantity as may be necessary to permit compliance with the requirements of copies thereof the Act and the Rules and Regulations.
(f) The Company will cooperate with the Underwriter and counsel for the Underwriter in taking such action as may be necessary to qualify the Debentures for offering and sale under the securities laws of any state or jurisdiction of the United States as the Distributor Underwriter may reasonably requestrequest and will use its best efforts to continue such qualification in effect so long as required for the distribution of the Debentures.
5.5 At (g) The Company will make generally available to its own expensesecurity holders as soon as practicable, but not later than 120 days after the Company agrees to prepareclose of the period covered thereby, execute, and file any and all documents and to take all actions that may be reasonably necessary an earnings statement (in connection form complying with the qualification provisions of Section 11(a) of the Units for sale in such states as Distributor may designate. Concurrent with Act, including, at the effectiveness option of the Company, Rule 158 under the Act, which need not be certified by independent public accountants unless required by the Act or the Rules and Regulations) covering a period of at least 12 months commencing after the effective date of the Registration Statement.
(h) The Company will not assert, plead (as a defense or otherwise) or in any manner whatsoever claim (and will actively resist any attempt to compel it to assert, plead or claim) in any action, suit or proceeding that the interest rate on the Debentures violates present or future usury or other laws relating to the interest payable on any indebtedness and will not otherwise avail itself (and will actively resist any attempt to compel it to avail itself) of the benefits or advantages of any such laws.
(i) For a period of five years after the issuance of the Debentures, the Company shall provide will furnish as soon as practicable to the Distributor Underwriter copies of any reports filed by the Company with the Commission pursuant to Section 13 of the Exchange Act, copies of the Company's definitive proxy statements and annual reports and copies of all reports and communications which shall be sent to the holders of Common Stock.
(j) The Company will apply the net proceeds from the offering of the Debentures in writing a list the manner set forth under the caption "Use of those states and other jurisdictions Proceeds" in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsProspectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Southwest Water Co), Underwriting Agreement (Southwest Water Co)
Agreements of the Company. 5.1 The Company covenants and agrees with each of the several Underwriters that:
(a) If any information shall have been omitted from the Registration Statement in reliance upon Rule 430A, the Company, at the earliest possible time, will furnish the Representatives with a copy of the Prospectus to be filed by the Company with the Commission to comply with Rule 424(b) and Rule 430A under the Act, and, if the Representatives do not object to the contents thereof, will file such Prospectus with the Commission in compliance with such Rules. Upon compliance with such Rules, the Company will so advise the Representatives promptly. The Company will not, either prior advise the Representatives and counsel to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) Underwriters promptly of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the initiation institution of any proceedings for that purpose purpose, or of any notification of the suspension of qualification of the Shares for sale in any jurisdiction or the threat thereof; (iv) initiation or threatening of any proceedings for that purpose. The Company also will advise the Representatives and counsel to the Underwriters promptly of any request of the happening Commission for amendment or supplement of the Registration Statement, of any event that in the judgment Preliminary Prospectus, or of the Prospectus, or for additional information, and the Company makes will not file any statement made in amendment or supplement to the Registration Statement (either before or after it becomes effective), to any Preliminary Prospectus, or to the Prospectus untrue (including a prospectus filed pursuant to Rule 424(b)) if the Representatives have not been furnished with a copy prior to such filing or that requires if the making Representatives reasonably object to such filing.
(b) During the time during which a Prospectus relating to the Shares is required to be delivered under the Act, the Company shall comply with all requirements imposed on it by the Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, so far as is necessary to permit the continuance of any changes sales or dealings in the Registration Statement Shares as contemplated by the provisions hereof and the Prospectus. If any event occurs as a result of which the Prospectus, including any subsequent amendment or the Prospectus in order supplement, would include an untrue statement of a material fact, or would omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if it is becomes necessary at any time to supplement or amend the Prospectus Prospectus, including any amendment or supplement thereto, to comply with lawthe Act, the Company promptly will forthwith advise the Representatives and counsel to the Underwriters thereof and will promptly prepare and duly file with the SEC Commission an appropriate amendment or supplement that will correct such statement or omission or an amendment theretothat will effect such compliance; and, and will if any Underwriter is required to deliver to a prospectus nine (9) months or more after the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness effective date of the Registration Statement, the Company, upon request of the Representatives but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(c) The Company will not, prior to the Second Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-B under the Act, except as contemplated by the Prospectus.
(d) The Company will not acquire any of the Common Stock before the Second Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, nor will the Company declare or pay any dividend or make any other distribution upon its Common Stock payable to stockholders of record on a date prior to such date.
(e) The Company will make generally available to its security holders and the Representatives an earnings statement of the Company as soon as practicable, but in no event later than fifteen (15) months after the end of the Company's current fiscal quarter, covering a period of twelve (12) consecutive calendar months beginning after the effective date of the Registration Statement, but beginning not later than four months after such effective date, which will satisfy the provisions of the last subsection of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(f) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company will furnish to the Representatives, at the expense of the Company, copies of the Registration Statement, the Prospectus, any Preliminary Prospectus, and all amendments and supplements to any such documents in each case as soon as available and in such quantities as the Representatives may reasonably request, for the purposes contemplated by the Act.
(g) The Company shall provide take or cause to be taken in cooperation with the Representatives and counsel to the Distributor Underwriters all actions required in writing qualifying or registering the Shares for sale under the Blue Sky Laws of such jurisdictions as the Representatives may reasonably designate, provided the Company shall not be required to qualify generally as a list foreign corporation or to consent generally to the service of those states process under the law of any such state (except with respect to the offering and sale of the Shares), and will continue such qualifications or registrations in effect so long as reasonably requested by the Representatives to effect the distribution of the Shares (including, without limitation, compliance with all undertakings given pursuant to such qualifications or registrations). In each jurisdiction where any of the Shares shall have been qualified as provided above, the Company will file such reports and statements as may be required to continue such qualification for a period of not less than one year from the date of this Agreement.
(h) The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants and quarterly reports containing financial statements and financial information which may be unaudited. During the period ending five years after the date of this Agreement, (i) as soon as practicable after the end of the fiscal year, the Company will furnish to the Representatives two copies, and to each of the other jurisdictions Underwriters who may so request, one copy, of the annual report of the Company containing the consolidated balance sheet of the Company as of the close of such fiscal year and corresponding consolidated statements of earnings, stockholders' equity, and cash flows for the year then ended, such consolidated financial statements to be under the certificate or opinion of the Company's independent accountants, and (ii) the Company will file promptly and will furnish to the Representatives at or before the filing thereof copies of all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13, 14, or 15 of the Exchange Act. During such five-year period the Company also will furnish to the Representatives one copy of the following:
(i) as soon as practicable after the filing thereof, each other report, statement, or other document filed by the Company with the Commission;
(ii) as soon as practicable after the filing thereof, all reports, statements, other documents, and financial statements furnished by the Company to Nasdaq pursuant to requirements of or agreements with Nasdaq; and
(iii) as soon as available, each report, statement, or other document of the Company mailed to its stockholders.
(i) The Company will use its best efforts to satisfy or cause to be satisfied the conditions to the obligations of the Underwriters in Section 8 hereof.
(j) The Company shall deliver the requisite notice of issuance to the NASD and shall take all necessary or appropriate action within its power to maintain the authorization for trading of the Common Stock on the Nasdaq Stock Market for a period of at least thirty-six (36) months after the date of this Agreement.
(k) The Company shall prepare and timely file with the Commission, from time to time, such reports as may be required by the Rules and Regulations.
(l) The Company shall comply in all respects with the undertakings given by the Company in connection with the qualification or registration of the Shares for offering and sale under the Blue Sky Laws.
(m) The Company shall apply the net proceeds from the sale of the Shares to be sold by it hereunder in the manner and for the purposes specified under the heading "Use of Proceeds" in the Prospectus. The Company shall file, and will furnish or cause to be furnished to the Representative and counsel to the Underwriters copies of all reports as may be required in accordance with Rule 463 under the Act.
(n) The Company shall supply the Representatives and counsel to the Underwriters, at the Company's cost, four copies of a bound volume of the Offering and Underwriting materials within a reasonable time after the Closing Date.
(o) Except for the sale of Common Stock pursuant to this Agreement, and the granting of options for up to 75,000 shares of Common Stock pursuant to the Company's Incentive Compensation Plan, neither the Company nor any of its Subsidiaries shall, directly or indirectly, offer, sell, contract to sell, issue, distribute, grant any option, right, or warrant to purchase or otherwise dispose of any shares of Common Stock or securities convertible into, or exercisable, or exchangeable for shares of Common Stock, in the open market or otherwise, for a period of one-hundred eighty (180) days after the later of the effective date of the Registration Statement or the date of this Agreement, without the express prior written consent of the Representatives.
(p) The Company shall cause each person listed in the table in the Prospectus under the heading "Security Ownership of Certain Beneficial Owners and Management" to furnish to the Representatives, on or before the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriters, pursuant to which the Units are qualified each such person shall agree not to offer for sale, together contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock for a period of one hundred eighty (180) days following the effective date of the Registration Statement, except with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsexpress prior written consent of the Representatives.
Appears in 2 contracts
Samples: Underwriting Agreement (Gold Banc Corp Inc), Underwriting Agreement (Gold Banc Corp Inc)
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Underwriters:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriters and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet for the Securities containing only a description of the Securities, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise the Representatives promptly and, if requested by the Representatives, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon the Representatives’ reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by the Underwriters, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to each Underwriter, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to each Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as such Underwriter may reasonably request.
(h) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(i) Prior to any public offering of the Securities, to cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Representatives may request, to continue such qualification in effect so long as required for distribution of the Securities 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(k) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the Distributor record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor will 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (vi) the rating agencies in connection with the ratings of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell Units only or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities; provided, however, the Company may, at any time, offer or sell or announce the offering of commercial paper issued in such states the ordinary course of business.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(o) To use its best efforts to do and perform all things required or jurisdictions necessary to be 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 Securities.
(p) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with such restrictions and requirementsany stabilization or manipulation of the price of the Securities.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company agrees with the several Purchasers that:
(a) The Company will not, either prior advise you promptly of any proposal to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment amend or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment Purchased Common Stock, and will furnish you a copy thereof prior to any Registration Statement or Prospectus that may be filed from time to time the filing thereof with the SEC; Commission.
(iiib) The Company will furnish to you copies of the issuance registration statement relating to the Common Stock as originally filed and all amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related prospectus, the Prospectus, and all amendments and supplements to such documents (except supplements relating to securities which are not Purchased Common Stock), in each case as soon as available and in such quantities as you reasonably request for the purposes contemplated by the SEC of Act.
(c) If at any stop order suspending time when a prospectus relating to the effectiveness of Purchased Common Stock is required to be delivered under the Registration Statement Act or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of Rules and Regulations, any event that in the judgment occurs as a result of the Company makes any statement made in the Registration Statement or which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or that requires the making of any changes in the Registration Statement or the Prospectus in order omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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 at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Purchasers and promptly prepare and duly file with the SEC Commission an amendment or supplement to the Registration Statement or any appropriate supplement filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and deliver in connection therewith, such Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company's obligation under this Section 4(c)), and provided further that any such Prospectus or amendment thereto, or supplement required later than nine months from the date hereof shall be furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Common Stock for offering and sale under the securities laws of any state or jurisdiction of the United States as the Purchasers may reasonably request and will deliver use its best efforts to continue such qualification in effect so long as required for the Distributordistribution of the Purchased Common Stock; provided, without chargehowever, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such number of copies thereof as state or jurisdiction or to comply with any other requirement deemed by the Distributor may reasonably requestCompany to be unduly burdensome.
5.5 At (e) The Company will make generally available to its own expense, security holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with Act) covering a period of twelve months after the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness effective date of the Registration Statement.
(f) For a period of three years, the Company will furnish to you copies of any report or definitive proxy statement which the Company shall provide file with the Commission under the Exchange Act, and copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally.
(g) The Company will apply the net proceeds from the offering of the Purchased Common Stock as set forth under the caption "Use of Proceeds" in the Prospectus Supplement.
(h) If a public offering of the Purchased Common Stock is to be made, the Company will not offer or sell any of its other common stock (other than pursuant to the Distributor Company's dividend reinvestment and stock purchase plan or any employee benefit or other plan in writing a list effect on the date of those states and other jurisdictions in which this Agreement) prior to 120 days after the Units are qualified for sale, together with restrictions and requirements applicable thereto, and Closing Date without the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsconsent of the Purchasers.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the Placement 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 Agent, pursuant to Rule 424(b) under the Act within the prescribed time period and will provide a copy of such filing to the Placement Agent promptly following such filing.
(ii) The Company will not, either prior to the Effective Date or thereafter during such period as the Final Prospectus is would be required by law to be delivered in connection with sales of the UnitsShares 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 Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, Final Prospectus unless a copy thereof shall first have been submitted to the Distributor Placement Agent within a reasonable period of time prior to the filing thereof and the Distributor Placement Agent shall not have reasonably objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (iii) The Company will notify the Distributor Placement Agent promptly, and will will, if requested, confirm such advice notification in writing, (ia) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto to the Registration Statement becomes effective; (iib) of any request by the SEC 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, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiic) of the issuance by the SEC Commission of any stop order preventing or suspending the effectiveness of the Registration Statement Statement, the Final Prospectus or any Issuer Free Writing Prospectus, or the initiation of any proceedings for that purpose or the threat thereof; (ivd) of becoming aware of the happening 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 (ve) of receipt by the Company or of any representative or attorney 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 Placement Agent, the Company will make every reasonable effort to obtain the withdrawal of any other communication such order at the earliest possible moment. If the Company has omitted any information from the SEC relating to the Company, the Registration Statement, any preliminary prospectuspursuant to Rule 430A under the Act, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company it will use its best efforts to comply with all the provisions of any undertakings contained in and make all requisite filings with the Registration StatementCommission pursuant to said Rule 430A and to notify the Placement Agent promptly of all such filings.
5.4 On (iv) If, at any time when the Effective Date, and thereafter from time Final Prospectus relating to timethe 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 will deliver to becomes aware of the Distributor, without charge and in occurrence of any event as a timely mannerresult of which the Final Prospectus, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to the Distributor should be set forth in the Prospectus Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary in order to make any statement the statements therein, in the light of the circumstances under which it was 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 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 necessary, in the reasonable judgment of counsel to the Company or counsel to the Placement Agent, at any time to amend or supplement the Final Prospectus or amend the Prospectus Registration Statement to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Placement Agent and will promptly prepare and duly file with the SEC Commission, at the Company’s expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Final Prospectus that corrects such statement or amendment thereto, omission or effects such compliance and will deliver to the DistributorPlacement Agent, without charge, such number of copies thereof as the Distributor Placement Agent may reasonably request. The Company consents to the use of the Final Prospectus or any amendment or supplement thereto by the Placement Agent, and the Placement Agent 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 Agent 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 Agent may reasonably request.
5.5 At its own expense(vi) The Company will comply with all the undertakings contained in the Registration Statement.
(vii) 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.”
(viii) Prior to the sale of the Shares to the Investors, the Company agrees to prepare, execute, will cooperate with the Placement Agent and file any and all documents and to take all actions that may be reasonably necessary their counsel in connection with the registration or qualification of the Units Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Placement Agent may reasonably request; provided, that in such states as Distributor may designate. Concurrent with no event shall the effectiveness 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.
(ix) 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 Registration Statement, price of the Shares to facilitate the sale or resale of any of the Shares.
(x) The Company will notify promptly the Placement Agent if the Company shall provide ceases to be an Emerging Growth Company at any time prior to the Distributor later of (a) completion of the period when a prospectus relating to the Shares is required to be delivered under the Act (including in writing a list circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act) and (b) completion of those states and other jurisdictions in which the Units are qualified for Lock-Up Period.
(xi) The Company will not, directly or indirectly, without the prior written consent of the Placement Agent, offer to sell, sell, contract to sell, grant any option or warrant to purchase, make any short sale, together 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 restrictions and requirements applicable theretorespect to (a) the issuance of shares of Common Stock upon the exercise of stock options outstanding as of the date hereof, and (b) the Distributor will sell Units only issuance of shares of Common Stock or stock options under any benefit plan of the Company existing on the date hereof, and described in such states or jurisdictions and in compliance with such restrictions and requirementsthe Final Prospectus.
Appears in 1 contract
Samples: Placement Agency Agreement (Blue Water Global Group, Inc.)
Agreements of the Company. 5.1 The Company agrees with the Underwriter as follows:
(a) The Company will notprepare 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 Underwriter, either prior the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the Effective Date or thereafter during selling concessions and reallowances, if any, and such period other information as the Prospectus is required by law to be delivered Underwriter and the Company deem appropriate in connection with sales the offering of the UnitsNotes, and the Company will timely file any amendment or such supplement to the Registration Statement or prospectus with the Prospectus, whether SEC pursuant to Rule 424(b) under the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to but the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall Company will not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or file any amendments to the Registration Statement and such supplement as in effect with respect to the Notes or any amendments or supplements to the Prospectus asProspectus, in unless it shall first have delivered copies of such amendments or supplements to the light of future developmentsUnderwriter, may, in the opinion of the Distributor's counsel, be necessary with reasonable opportunity to comment on such proposed amendment or advisable. Subject to Section 5.4, supplement or if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days Underwriter shall have reasonably objected thereto promptly after receipt by thereof; the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify immediately advise the Distributor promptly, and will confirm such advice in writing, Underwriter or the Underwriter's counsel (i) when notice is received from the Registration Statement has been amended or supplemented and when SEC that any post-effective amendment thereto becomes to the Registration Statement has become or will become effective; and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, offer and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) sale of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement Notes or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) communication, whether by or of the happening SEC or any authority administering any state securities or Blue Sky law, as soon as the Company is advised thereof, and will use its best efforts to prevent the issuance of any event that in the judgment of the Company makes such order or communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any statement made in the Registration Statement or time when the Prospectus untrue or that requires relating to the making Notes is required to be delivered under the Act, any event occurs as a result of any changes in the Registration Statement or which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company promptly will forthwith notify the Underwriter of such event and will promptly prepare and duly file with the SEC, at its own expense, an amendment or supplement to such Prospectus that will correct such statement or omission or an amendment that will effect such compliance. Neither the Underwriter's consent to, nor the Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) The Company will immediately inform the Underwriter (i) of the receipt by the Company of any communication from the SEC an appropriate supplement or amendment thereto, any state securities authority concerning the offering or sale of the Notes; and will deliver (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the Distributoroffering or sale of the Notes.
(d) The Company will furnish to the Underwriter, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Prospectus, and all amendments and supplements to such number of copies thereof documents relating to the Notes, in each case in such quantities as the Distributor Underwriter may reasonably request.
5.5 At its own expense(e) No amendment or supplement will be made to the Registration Statement or Prospectus which the Underwriter shall not previously have been advised or to which it shall reasonably object after being so advised.
(f) The Company will cooperate with the Underwriter and with their counsel in connection with the qualification of, or procurement of exemptions with respect to, the Notes for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriter may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; 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 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.
(g) The Company consents to the use, in accordance with the securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriter and by dealers, of the Prospectus furnished by the Company.
(h) To the extent, if any, that the rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of 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 Underwriter (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 Underwriter 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 Underwriter terminating this Agreement pursuant to Section 8 or 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 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 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 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 Notes to facilitate the sale or resale of the Notes.
(m) On or before the Closing Date, the Company shall xxxx its accounting and other records, if any, relating to the Financed Student Loans and shall cause each Servicer to xxxx their respective computer records relating to the Financed Student Loans to show the absolute ownership by the Eligible Lender Trustee, as eligible lender of, and the interest of the Company in, the Financed Student Loans, 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.
(n) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriter, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans.
(o) 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, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection or transmit for filing with the qualification 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.
(p) As soon as practicable, but not later than 16 months after the Units for sale in such states as Distributor may designate. Concurrent with date of this Agreement, the effectiveness 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 effective date of the Registration Statement, ; (ii) the Company shall provide effective date of the most recent post-effective amendment to the Distributor in writing a list Registration Statement to become effective prior to the date of those states this Agreement; and other jurisdictions in (iii) the date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the Units are qualified for sale, together with restrictions and requirements applicable thereto, and provisions of Section 11(a) of the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsAct.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the Initial Purchaser as follows:
(a) The Company will not, either prior to advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchaser promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soit, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, within the period of time referred to in paragraph (ie) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) below, of any request by change in the SEC for amendments Company's condition (financial or supplements to the Registration Statement otherwise), business, prospects, properties, net worth or the Prospectus results of operations, or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement Preliminary Offering Memorandum or the Prospectus Offering Memorandum untrue or that which requires the making of any additions to or changes in the Registration Statement Preliminary Offering Memorandum or the Prospectus Offering Memorandum in order to make the statements therein, therein not misleading in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from necessity to amend or supplement the SEC relating to the Company, the Registration Statement, any preliminary prospectus, Preliminary Offering Memorandum or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SECOffering Memorandum to comply with any law.
5.3 (b) The Company will comply with all furnish to the provisions Initial Purchaser, without charge, as of any undertakings contained in the Registration Statementdate of the Offering Memorandum, such number of copies of the Offering Memorandum as the Initial Purchaser may reasonably request.
5.4 On (c) The Company will not make any amendment or supplement to the Effective DatePreliminary Offering Memorandum or the Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which it shall reasonably object after being so advised or file any document with the Securities and Exchange Commission (the "Commission") which upon filing becomes incorporated by reference into the Preliminary Offering Memorandum ("an Incorporated Document"), without, in each case, delivering a copy of such document to the Initial Purchaser prior to such filing.
(d) Prior to the execution and thereafter from time to timedelivery of this Agreement, the Company has delivered or will deliver to the DistributorInitial Purchaser, without charge and charge, in a timely mannersuch quantities as the Initial Purchaser shall have requested or may hereafter reasonably request, as many copies of the Prospectus Preliminary Offering Memorandum. The Company consents to the use in accordance with the securities or "blue sky" laws of the jurisdictions in which the Notes are offered by the Initial Purchaser and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Offering Memorandum in accordance with the securities or "blue sky" laws of the jurisdictions in which the Notes are offered by the Initial Purchaser and by all dealers to whom Notes may be sold in connection with the offering and sale of the Notes.
(e) If, at any printed supplemental material as time prior to completion of the Distributor may reasonably request. If during such period distribution of time the Notes by the Initial Purchaser to Eligible Purchasers, any event shall occur that in the judgment of the Company or the Distributor Initial Purchaser or in the opinion of counsel for the Initial Purchaser should be set forth in the Prospectus Offering Memorandum in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum, or to file under the Securities Exchange Act of 1934, as amended (the "Exchange Act") any document which upon filing becomes an Incorporated Document, to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment theretothereto or file such document under the Exchange Act, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchaser and dealers a reasonable number of copies thereof as thereof. In the Distributor may reasonably requestevent that the Company and the Initial Purchaser agree that the Offering Memorandum should be amended or supplemented, or that a document should be filed under the Exchange Act which upon filing becomes an Incorporated Document, the Company, if requested by the Initial Purchaser, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement or such document unless such announcement or disclosure, in the opinion of both counsel to the Company and to the Initial Purchaser, would jeopardize the ability of the Company to rely on an exemption from registration under the Act in connection with the sale of the Notes hereunder.
5.5 At (f) The Company will cooperate with the Initial Purchaser and with its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary counsel in connection with the qualification of the Units Notes for offering and sale by the Initial Purchaser and by dealers under the securities or "blue sky" laws of such jurisdictions as the Initial Purchaser may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such 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 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.
(g) So long as any of the Notes are outstanding, the Company will furnish to the Initial Purchaser (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 the Initial Purchaser may reasonably request.
(h) 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 Initial Purchaser terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchaser 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 Initial Purchaser for all out-of-pocket expenses (including fees and expenses of its 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.
(i) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum under "Use of Proceeds" and in a manner that will not result in the Company becoming an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act").
(j) Except as stated in this Agreement and in the Preliminary Offering Memorandum and the Offering Memorandum, 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 Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company will not distribute any offering material in connection with the Exempt Resales.
(k) The Company has complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(l) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in such states respect of any security (as Distributor may designate. Concurrent defined in the Act) that would be integrated with the effectiveness sale of the Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or the Eligible Purchasers of the Notes.
(m) The Company agrees to comply with all of the terms and conditions of the Registration StatementRights Agreement.
(n) The Company agrees that, prior to or contemporaneously with any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Indenture shall be qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The Company agrees to cause to be entered into any necessary supplemental indentures in connection with such qualification.
(o) The Company shall, and shall use its best efforts to cause the transfer agent with respect to the Notes and the shares of Common Stock, par value $.01 per share, of the Company (the "Common Stock") issuable upon conversion of the Notes (the "Shares") to, refuse to register any transfer of such securities sold pursuant to Regulation S if such transfer is not made in accordance with the provisions of Regulation S.
(p) The Company shall not, without the prior consent of the Initial Purchaser, offer, sell, contract to sell or otherwise dispose of any securities the offer and sale of which could reasonably be expected to be integrated with the offer and sale of the Notes offered hereby.
(q) During the period commencing on the first Trading Day after the 85th day immediately following the issuance of the Notes and ending upon the close of business on the 10th Trading Day immediately following the 90th day after the issuance thereof, the Company shall provide to not bid for or purchase any Common Stock or engage in any other activity with respect thereto for the Distributor purpose of creating actual, or apparent, active trading in writing a list of those states and other jurisdictions in which or raising the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsprice thereof.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will nothereby agrees with the Initial Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, either prior if requested by the Initial Purchaser, confirm such advice in writing, (i) of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any Series A Notes for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose and (ii) of the happening of any event during the period referred to in Section 5(c) below that makes any statement of a material fact made in the Preliminary Offering Memorandum or the Offering Memorandum untrue or that requires any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein not misleading. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or other federal or state regulatory authority shall issue an order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Effective Date Company as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or thereafter during supplements thereto, as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(c) During such period as in the Prospectus opinion of counsel for the Initial Purchaser an Offering Memorandum is required by law to be delivered in connection with sales Exempt Resales by the Initial Purchaser and in connection with market-making activities of the UnitsInitial Purchaser for so long as any Series A Notes are outstanding, file (i) not to make any amendment or supplement to the Registration Statement Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which the ProspectusInitial Purchaser shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchaser's reasonable request, whether pursuant any amendment or supplement to the 1933 ActOffering Memorandum which may be necessary or advisable in connection with such Exempt Resales or such market-making activities.
(d) If, 1940 Act during the period referred to in Section 5(c) above, any event shall occur or otherwise, unless condition shall exist as a copy thereof shall first have been submitted to the Distributor within a reasonable period result of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, maywhich, in the opinion of counsel to the Distributor's counselInitial Purchaser, be it becomes necessary to amend or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus Offering Memorandum in order to make the statements therein, in the light of the circumstances in which they are madewhen such Offering Memorandum is delivered to an Eligible Purchaser, not misleading; and (v) , or if, in the opinion of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating counsel to the CompanyInitial Purchaser, it is necessary to amend or supplement the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will Offering Memorandum to comply with all any applicable law, forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely mannerstatements therein, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company so amended or the Distributor should be set forth in the Prospectus in order to make any statement thereinsupplemented, will not, in the light of the circumstances under which when it was madeis so delivered, not be misleading, or if it is necessary to supplement or amend the Prospectus to so that such Offering Memorandum will comply with applicable law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to furnish to the Distributor, without charge, Initial Purchaser and such other persons as the Initial Purchaser may designate such number of copies thereof as the Distributor Initial Purchaser may reasonably request.
5.5 At its own expense(e) Prior to the sale of all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Company agrees Initial Purchaser and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Initial Purchaser in connection with the registration or qualification of the Units Series A Notes for offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may request and to continue such registration or qualification in effect so long as required for Exempt Resales and to file such states consents to service of process or other documents as Distributor may designate. Concurrent be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction 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 Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Notes a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows (and similar financial reports of all unconsolidated subsidiaries, if any) as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(g) So long as the Notes are outstanding, to furnish to the Initial Purchaser as soon as available copies of all reports or other communications furnished by the Company to its security holders or furnished to or filed with the effectiveness 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/or its subsidiaries as the Initial Purchaser may reasonably request.
(h) So long as any of the Series A Notes remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
(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 obligations of the Company under this Agreement, including: (i) the fees, disbursements and expenses of counsel to the Company and accountants of the Company in connection with the sale and delivery of the Series A Notes to the Initial Purchaser and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchaser and persons designated by it in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes 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 Initial Purchaser in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Notes, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Notes, (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 Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company shall provide to the Distributor hereunder for which provision is not otherwise made in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsthis Section.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection agrees with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4you:
(a) To advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor you, to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, and (iv) of the happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of at any time the Commission shall issue any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in stop 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you five conformed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall provide be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Distributor 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 writing connection with the distribution of the Securities by you, and to use its best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(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 for such period as in the opinion of counsel for the Underwriters a list prospectus is required by the Act 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 those the Prospectus (and of any amendment or supplement to the Prospectus and any documents incorporated therein by reference) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the 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 registration or qualification in effect so long as required for distribution of the Securities and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction 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 Securities, in any jurisdiction in which it is not now so subject.
(g) To make generally available to its security holders as soon as practicable an earnings statement covering the twelve-month period ending September 30, 2001 that shall satisfy the provisions of Section 11(a) of the Act.
(h) So long as the Securities are outstanding, to furnish to you as soon as available copies of all reports or other communications furnished to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Securities under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) all expenses in connection with the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and all costs of 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 registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including the Depository Trust Company), (vii) any fees charged by rating agencies for the rating of the Securities, (viii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Securities and (ix) all other jurisdictions costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in which this Section.
(j) During the Units are qualified for saleperiod beginning on the date hereof and continuing to and including the Closing Date, together with restrictions not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities and requirements applicable thereto(ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Xxxxxxx Xxxxx Xxxxxx Inc.
(k) Not to voluntarily claim, and to actively resist any attempts to claim, the Distributor will sell Units only in such states benefit of any usury laws against the holders of the Securities.
(l) To use its reasonable best efforts to do and perform all things required or jurisdictions necessary to be done and in compliance with such restrictions performed under this Agreement by the Company prior to the Closing Date and requirementsto satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Standard Pacific Corp /De/)
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Underwriters:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriters and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet for the Shares containing only a description of the Shares, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Shares that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) (x) information describing the preliminary terms of the Shares or their offering or (y) information that describes the final terms of the Shares or their offering and that is included in the Final Term Sheet.
(f) To advise the Representatives promptly and, if requested by the Representatives, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon the Representatives’ reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Shares by the Underwriters, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to each Underwriter, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to each Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as such Underwriter may reasonably request.
(h) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(i) Prior to any public offering of the Shares, to cooperate with the Representatives 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 the Representatives may request, to continue such 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to 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.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(k) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the Distributor record holders of the Shares a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states (including in each case the fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (vi) the rating agencies in connection with the ratings of the Shares, (vii) the preparation, issuance, execution and delivery of the Shares and (viii) the fees and expenses of any transfer agent or registrar in connection with the Shares.
(m) To apply the net proceeds from the sale of the Shares in the manner described under the caption “Use of Proceeds” in the Prospectus.
(n) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Shares.
(o) For the period ending 30 days after the date of the Prospectus, the Company will not (i) offer, pledge, announce the intention to sell, contract to sell, sell Units only any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any Preferred Stock or depositary shares in respect thereof, any other preferred stock of the Company (or depositary shares in respect thereof), or any securities convertible into or exercisable or exchangeable for Preferred Stock, depositary shares in respect thereof, or any other preferred stock of the Company (or depositary shares in respect thereof), or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of Preferred Stock or depositary shares in respect thereof, whether any such states transaction described in clause (i) or jurisdictions and (ii) above is to be settled by delivery of Preferred Stock or depositary shares in compliance with respect thereof or such restrictions and requirementsother securities, in cash or otherwise, without the prior written consent of the Representatives, other than the Preferred Stock to be sold hereunder.
(p) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company agrees with each of --------------------------- the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or thereafter during such period as the Final Prospectus is required by law to be delivered in connection with sales of the UnitsSecurities by an Underwriter or dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy draft thereof shall first have been submitted to the Distributor Representatives within a reasonable period of time prior to the filing thereof and the Distributor Representatives shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representatives promptly, and will confirm such advice in writing, (i1) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto to the Registration Statement becomes effective; , (ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Final Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of the 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 requires the Company to file an amendment or supplement to the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company Company, or any representative representatives or attorney of the Company Company, of any other communication from the SEC Commission relating to the Company, the Registration Statement, the Basic Prospectus, any preliminary prospectus, Preliminary Prospectus or the Prospectus. For purposes of this section, informal requests by Final Prospectus or acts the offering of the SEC staff Securities. If at any time the Commission shall not be deemed actions issue any order suspending the effectiveness of or requests by the SECRegistration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment.
5.3 (c) The Company will furnish to the Representatives, without charge, one complete copy of the Registration Statement and 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 furnish 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, but without exhibits and documents incorporated by reference therein.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 (e) On the Effective Date, and thereafter from time to time, the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many copies of the Final Prospectus and or any printed supplemental material supplement thereto, as the Distributor Representatives may reasonably request. The Company consents to the use of any Preliminary Prospectus and the Final Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and for any period of time thereafter during which a prospectus is required by law to be delivered in connection therewith. If during such period of time time, any event shall occur that which in the judgment of the Company or counsel to the Distributor 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 mademade when delivered, not misleading, or if it is necessary to supplement or amend the Final Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof as the Distributor 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.
5.5 At its own expense(f) Prior to any public offering of the Securities by the Underwriters, the Company agrees will cooperate with the Representatives and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request copies of such states financial statements and other periodic and special reports as Distributor the Company may designate. Concurrent 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 effectiveness Commission.
(h) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Execution 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, within the meaning of and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Representatives, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to
(1) 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, (2) the preparation and delivery of certificates representing the Securities, (3) the printing of this Agreement, any 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 Company shall provide Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and all amendments and supplements thereto, as may be reasonably 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, (5) any filings required to be made by the Distributor in writing a list of those states and other jurisdictions in which Underwriters with the Units are qualified for sale, together with restrictions and requirements applicable theretoNASD, and the Distributor fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (6) the registration or qualification of the Securities 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) counsel to the Company, (8) the transfer agent and registrar for the Securities (9) the rating of the Securities by one or more rating agencies and (10) the Trustee and any agent of the Trustee and the fees, disbursements and other charges of counsel for the Trustee in connection with the Indenture and the Securities.
(j) If this Agreement shall be terminated by the Company pursuant to any of the provisions hereof (other 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 Securities to facilitate the sale or resale of any of the Securities.
(l) The Company will apply the net proceeds from the offering and sale of the Securities in the manner set forth in the Final Prospectus under "Use of Proceeds".
(m) Until sixty (60) days from the Execution Date, the Company will not, without the consent of the Representatives, offer, sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementscontract to sell, or otherwise dispose of, by public offering, or announce the public offering of, any other debt securities of the Company other than the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Century Telephone Enterprises Inc)
Agreements of the Company. 5.1 The Company covenants and agrees with each Underwriter as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsOffered ADSs by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriters, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECUnderwriters, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to the Distributoreach Underwriter, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Offered ADSs may reasonably requestbe sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Distributoreach Underwriter, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor each Underwriter may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify the Representative and, if requested by the Representative, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company agrees will cooperate with the Underwriters and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriters may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants).
(h) The Company will make generally available to holders of its securities as soon as may designate. Concurrent be practicable an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriters or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NYSE, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriters), and (xi) all other costs and expenses of the Underwriters incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriters (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Company be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $75,000 in the aggregate.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and sale of the Offered ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of the Representative, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company, including Ordinary Shares and ADSs, or any other securities convertible into or exchangeable for its Ordinary Shares, ADSs or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement or pursuant to a strategic partnership with a customer) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any equity securities of the Company, including Ordinary Shares and ADSs, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares, ADSs or other securities, in cash or otherwise.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of the Representative, grant options to purchase Ordinary Shares or ADSs at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Representative, other than registration statements on Form S-8.
(n) The Company will cause each of its executive officers , directors and certain stockholders designated by the Representative to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of the Representative, sell, contract to sell or otherwise dispose of any ADSs or Ordinary Shares or rights to acquire such shares according to the terms set forth in Schedule IV hereto.
(o) Prior to the termination of the Option, the Company shall provide not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Distributor in writing a list Company or any Subsidiary, the financial condition, results of those states and other jurisdictions in which operations, business, properties, assets, or liabilities of the Units are qualified for saleCompany or any Subsidiary, together with restrictions and requirements applicable theretoor the offering of the Offered ADSs, without prior notice to the Representative.
(p) The Company will use its best efforts to cause the Offered ADSs and the Distributor will sell Units only in Underlying Shares to be listed on the NYSE and to maintain such states or jurisdictions and in compliance with such restrictions and requirementslisting on the NYSE.
Appears in 1 contract
Agreements of the Company. 5.1 4.1 The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith; provided however, that nothing contained in this Agreement shall in any way limit the Company’s right to file at any time such amendments to the Registration and/or supplements to the Prospectus, of whatever character, as the Company may deem advisable, such right being in all respects absolute and unconditional. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's ’s counsel, be necessary or advisable. Subject to Section 5.44.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 4.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 4.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 4.4 On the Effective Date, and thereafter from time to time, the Company will deliver directly to the DistributorDistributor and Selling Agents, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor or Selling Agents may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the DistributorDistributor and Selling Agent, without charge, such number of copies thereof as the Distributor and Selling Agent may reasonably request. The Company acknowledges and agrees that it has the sole responsibility under this Section 4.4 to provide copies of the Prospectus and any printed supplemental material directly to the Selling Agents.
5.5 4.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.
Appears in 1 contract
Samples: Distribution Agreement (Excelsior Buyout Investors LLC)
Agreements of the Company. 5.1 The Company agrees with the several Purchasers that:
(a) The Company will not, either prior advise you promptly of any proposal to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment amend or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment Purchased Debt Securities, and will furnish you a copy thereof prior to any Registration Statement or Prospectus that may be filed from time to time the filing thereof with the SEC; Commission.
(iiib) The Company will furnish to you copies of the issuance registration statement relating to the Debt Securities as originally filed and all amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related prospectus, the Prospectus, and all amendments and supplements to such documents (except amendments to exhibits and supplements relating to securities that are not Purchased Debt Securities), in each case as soon as available and in such quantities as you reasonably request for the purposes contemplated by the SEC of Act.
(c) If at any stop order suspending time when a prospectus relating to the effectiveness of Purchased Debt Securities is required to be delivered under the Registration Statement Act or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of Rules and Regulations, any event that in the judgment occurs as a result of the Company makes any statement made in the Registration Statement or which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or that requires the making of any changes in the Registration Statement or the Prospectus in order omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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 at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Purchasers and promptly prepare and duly file with the SEC Commission an amendment or supplement to the Registration Statement or any appropriate supplement filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and deliver in connection therewith, such Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company's obligation under this Section 4(c)), and provided further that any such Prospectus or amendment thereto, or supplement required later than nine months from the date hereof shall be furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Debt Securities for offering and sale under the securities laws of any state or jurisdiction of the United States as the Purchasers may reasonably request and will deliver use its best efforts to continue such qualification in effect so long as required for the Distributordistribution of the Purchased Debt Securities; provided, without chargehowever, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such number of copies thereof as state or jurisdiction or to comply with any other requirement deemed by the Distributor may reasonably requestCompany to be unduly burdensome.
5.5 At (e) The Company will make generally available to its own expensesecurity holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement.
(f) For a period of one year, the Company agrees will furnish to prepare, executeyou copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and file copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any and all documents and information filed by the Company on the Commission's XXXXX system will be deemed furnished to take all actions that may you in satisfaction of this clause (f).
(g) The Company will apply the net proceeds from the offering of the Purchased Debt Securities as set forth under the caption "Use of Proceeds" in the Prospectus Supplement.
(h) If a public offering of the Purchased Debt Securities is to be reasonably necessary in connection with made, the Company will not offer or sell any of its other debt securities which are substantially similar to the Purchased Debt Securities prior to ten business days after the Closing Date without the consent of the Purchasers.
(i) The Company will 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 use of the Prospectus, of the suspension of the qualification of the Units Purchased Debt Securities for offering or sale in such states as Distributor may designate. Concurrent with the effectiveness any jurisdiction or of the Registration Statementinitiation or threatening of any proceeding for any such purpose; and, in the Company shall provide event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the Distributor in writing a list prompt withdrawal of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsorder.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with each of the Underwriters as follows:
(a) The Company will notuse its best efforts to cause the Registration Statement, either prior if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Effective Date or thereafter during such period as the Prospectus Shares is required by law to be delivered in connection under the Act, the Company (A) will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the UnitsShares in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (B) will not file with the Commission the prospectus, any amendment or supplement to such prospectus or any amendment to the Registration Statement or of which the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless Representative shall not previously have been advised and furnished with a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the proposed filing thereof and as to which filing the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall given its consent, such consent to not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if unreasonably withheld.
(b) As soon as the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by is advised or obtains knowledge thereof, the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify advise the Distributor promptly, and will confirm such advice in writing, Representative (iA) when the Registration Statement Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been amended or supplemented filed in accordance with said Rule 430A and when any post-effective amendment thereto to the Registration Statement becomes effective; (iiB) of any request made by the SEC Commission for amendments or supplements to amending the Registration Statement Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the initiation use of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement Preliminary Prospectus or the Prospectus untrue or that requires any amendment or supplement thereto or the making institution or threat of any changes investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as the Representative may reasonably require in order to qualify the Registration Statement Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Representative may designate, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Shares but not to exceed one year from the date of this Agreement, and (C) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); provided, however, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Shares may be sold, in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law or the Prospectus Rules and Regulations to be delivered in order connection therewith. If, at any time when a prospectus relating to the Shares is required to be delivered under the Act or the Rules and Regulations, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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, therein not misleading, or if it is becomes necessary at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company promptly will so notify the Representative and, subject to Section 5(i) hereof, will prepare and file with the Commission an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company will forthwith prepare make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and duly Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act or the Rules and Regulations, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(f) The Company will timely file all such reports, forms or other documents as may be required from time to time under the Act (including a report on Form SR, if required), the Rules and Regulations, the Exchange Act, and the rules and regulations thereunder, and all such reports, forms and documents filed will comply in all material respects as to form and substance with the SEC an appropriate supplement or amendment theretoapplicable requirements under the Act, the Rules and Regulations, the Exchange Act and the rules and regulations thereunder.
(g) During a period of five years after the date hereof, the Company will furnish to its shareholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the DistributorRepresentative:
(i) concurrently with furnishing such quarterly reports to its shareholders, statements of income of the Company for each quarter in the form furnished to the Company's shareholders and certified by the Company's principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its shareholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, shareholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent public accountants;
(iii) as soon as they are available, copies of all information (financial or other) mailed to shareholders;
(iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(v) every press release and every material news item or article of interest to the financial community in respect of the Company or its affairs which was released or prepared by the Company; and
(vi) any additional information of a public nature concerning the Company or its business which the Representative may reasonably request. During such five-year 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.
(h) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Common Stock.
(i) The Company will furnish, without charge, to the Representative or on the Representative's order, at such number of copies thereof place as the Distributor Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Representative may reasonably request.
5.5 At its own expense(j) The Company will not, directly or indirectly, without the prior written consent of the Representative, offer, sell, grant any option to purchase or otherwise dispose (or announce any offer, sale, grant of any option to purchase or other disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock for a period of 180 days after the date hereof, except pursuant to this Agreement and except pursuant to employee benefit plans discussed in the Prospectus.
(k) Neither the Company agrees to preparenor any of its officers or directors, execute, and file nor affiliates of any and all documents and to take all actions that may be reasonably necessary in connection with of them (within the qualification meaning of the Units for sale Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in such states as Distributor may designate. Concurrent with the effectiveness future reasonably be expected to cause or result in, stabilization or manipulation of the Registration Statement, price of any securities of the Company.
(l) The Company shall provide to will apply the Distributor net proceeds of the offering received by it in writing a list the manner set forth under the caption "Use of those states and other jurisdictions Proceeds" in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsProspectus.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notagrees with you that:
(a) It will, either prior to the Effective Date if necessary or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Unitslaw, file any an amendment or supplement to the Registration Statement or the Prospectusor, whether if necessary pursuant to Rule 430A under the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such post-effective amendment or amendments to the Registration Statement Statement, as soon as practicable after the execution and such supplement or supplements delivery of this Agreement, and will use its best efforts to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend cause the Registration Statement and/or so supplement or such post-effective amendment to become effective at the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 earliest possible time. The Company will notify comply fully and in a timely manner with the Distributor promptlyapplicable provisions of Rule 424 and Rule 430A under the Act.
(b) It will advise you promptly and, and will if requested by you, confirm such advice in writing, (i) when of the effectiveness of any amendment to the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; Statement, (ii) of the transmission to the Commission for filing of any request supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the SEC for amendments or supplements Prospectus and to furnish you with copies thereof, (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or requests by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that such purpose by the Commission or the threat thereof; any state securities commission or other regulatory authority, and (ivv) of the happening of any event that during the period referred to in the judgment of the Company paragraph (e) below which makes any statement Statement of a material fact made in the Registration Statement (as amended or the Prospectus supplemented from time to time) untrue or that which requires the making of any additions to or changes in the Registration Statement (as amended or supplemented from time to time) in order to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus (as amended or supplemented from time to time) untrue or which requires the making of any additions to or changes in the Prospectus (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) . If at any time the Commission shall issue any stop order suspending the effectiveness of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, or any preliminary prospectus, state securities commission or other regulatory authority shall issue an order suspending the Prospectus. For purposes of this section, informal requests by qualification or acts exemption of the SEC staff shall not be deemed actions Shares under any state securities or Blue Sky laws, the Company shall, if reasonably requested by you, use every reasonable effort to obtain the withdrawal or lifting of or requests by such order at the SECearliest possible time.
5.3 The Company (c) It will comply furnish (to the extent not previously furnished) to you without charge two (2) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits filed therewith or incorporated by reference therein, and will furnish to you such number of conformed copies of the provisions Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(d) It will not file any undertakings contained in amendment to the Registration Statement, or make any amendment or supplement to the Prospectus, of which you shall not previously have been advised and provided a copy prior to the filing or making thereof or to which you shall reasonably object; and it will prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or any amendment or supplement to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by you, and will use its best efforts to cause the same to become effective as promptly as possible.
5.4 On (e) For such period as in the Effective Dateopinion of counsel for the Underwriter a prospectus is required by the Act to be delivered in connection with sales by the Underwriter, and thereafter from time to time, the Company it will deliver furnish to the Distributor, Underwriter without charge and in a timely manner, as many copies of the Prospectus (and of any printed supplemental material amendment or supplement to the Prospectus) as the Distributor Underwriter may reasonably request. request for the purposes contemplated by the Act.
(f) If during such the period of time specified in paragraph (e) any event shall occur that as a result of which, in the judgment opinion of counsel for the Company Underwriter, it becomes necessary to amend or the Distributor should be set forth in supplement the Prospectus in order to make any statement the statements therein, in the light of the circumstances under which it was madeexisting as of the date the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement or amend the Prospectus to comply with lawthe Act, the Company will forthwith it will, as promptly as practicable, prepare and duly file with the SEC Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or amendment theretosupplemented, will not, in the light of the circumstances existing as of the date the Prospectus is so delivered, be misleading, and so that the Prospectus and will comply with the Act, and will deliver furnish to the Distributor, Underwriter and to such dealers as you shall specify without charge, charge such number of copies thereof as the Distributor Underwriter may reasonably request.
5.5 At its own expense(g) Prior to any public offering of the Shares, it will cooperate with you and counsel for the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary Underwriter in connection with the registration or qualification of the Units Shares for offer and sale by the Underwriter under the state securities or Blue Sky laws of such jurisdictions as you may request (provided, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject). The Company will continue such states qualification in effect so long as Distributor required by law for distribution of the Shares and will file such consents to service of process or other documents as may designate. Concurrent be necessary 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 general consent to service of process in any jurisdiction in which it is not now so subject).
(h) It will make generally available to its security holders as soon as reasonably practicable a consolidated earnings statement covering a period of at least twelve months beginning after the "effective date" (as defined in Rule 158 under the Act) of the Registration Statement (but in no event commencing later than 90 days after such date) which shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(i) It will timely complete all required filings and otherwise comply fully in a timely manner with all provisions of the Exchange Act to cause the Shares to be registered pursuant thereto.
(j) During the period of five years after the date of this Agreement, to furnish to you as soon as available a copy of each report or other publicly available information of the Company mailed to the holders of its Common Stock or filed with the effectiveness Commission and such other publicly available information concerning the Company and its Subsidiaries as you may reasonably request.
(k) It will use the proceeds from the sale of the Shares in the manner described in the Prospectus under the Caption "Use of Proceeds."
(l) It has not taken and will not take, directly or indirectly, any action designed, or that might reasonably be expected, to cause or result in stabilization or manipulation of the market price of the Common Stock to facilitate the sale or resale of the Shares.
(m) 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 Closing Date and to satisfy all conditions precedent to the delivery of the Shares.
(n) To use its best efforts to maintain the listing of such Common Stock on the New York Stock Exchange (or on another national securities exchange or the Nasdaq National Market System) for a period of five years after the effective date of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the several Initial Purchasers as follows:
(a) The Company will not, either prior to advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchasers promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soit, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, within the period of time referred to in paragraph (ie) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) below, of any request by change in the SEC for amendments Company's condition (financial or supplements to the Registration Statement other), business, properties, net worth or the Prospectus results of operations, or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by the Company , or any representative or attorney of the Company of necessity to amend or supplement the Offering Memorandum (as then amended or supplemented) to comply with any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEClaw.
5.3 (b) The Company will comply with all furnish to the provisions Initial Purchasers, without charge, as of any undertakings contained in the Registration Statementdate of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
5.4 On (c) The Company will not make any amendment or supplement to the Effective DatePreliminary Offering Memorandum or to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised or file any document which upon filing becomes an Incorporated Document, without delivering a copy of such document to the Initial Purchasers, prior to or concurrently with such filing.
(d) Prior to the execution and thereafter from time to timedelivery of this Agreement, the Company has delivered or will deliver to the DistributorInitial Purchasers, without charge and charge, in a timely mannersuch quantities as the Initial Purchasers shall have requested or may hereafter reasonably request, as many copies of the Prospectus Preliminary Offering Memorandum. The Company consents to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Debentures are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Offering Memorandum (and of any printed supplemental material as amendment or supplement thereto) in accordance with the Distributor securities or Blue Sky laws of the jurisdictions in which the Debentures are offered by the Initial Purchasers and by all dealers to whom Debentures may reasonably request. If during such period be sold, in connection with the offering and sale of the Debentures.
(e) If, at any time prior to completion of the distribution of the Debentures by the Initial Purchasers to Eligible Purchasers, any event shall occur that in the judgment of the Company or in the Distributor opinion of counsel for the Initial Purchasers should be set forth in the Prospectus Offering Memorandum (as then amended or supplemented) in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum, or to file under the Exchange Act any document which upon filing becomes an Incorporated Document, to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment theretothereto of such document, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchasers and dealers a reasonable number of copies thereof as thereof. In the Distributor may event that the Company and the Initial Purchasers agree that the Offering Memorandum should be amended or supplemented, or that a document should be filed under the Exchange Act which upon filing becomes an Incorporated Document, the Company, if reasonably requestrequested by the Initial Purchasers, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement or such document.
5.5 At its own expense, (f) The Company will cooperate with the Company agrees to prepare, execute, Initial Purchasers and file any and all documents and to take all actions that may be reasonably necessary with their counsel in connection with the qualification of the Units Debentures and the Common Stock issuable upon conversion of the Debentures for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such 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 service of process in suits, other than those arising out of the offering or sale of the Debentures, in any jurisdiction where it is not now so subject.
(g) So long as any of the Debentures are outstanding, the Company will furnish to the Initial Purchasers (i) as soon as available and upon request, 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 the Initial Purchasers may reasonably request.
(h) 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 Initial Purchasers terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchasers 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 Initial Purchasers for all out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by them in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(i) The Company will apply the net proceeds from the sale of the Debentures to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum.
(j) Without the prior consent of Smitx Xxxxxx Xxx., prior to the expiration of 90 days after the date of the Offering Memorandum, 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 (i) the sale of the Debentures to the Initial Purchasers pursuant to this Agreement and issuances of Common Stock upon conversion of Debentures, (ii) grants of options pursuant to the Company's Plan, (iii) issuances of Common Stock upon exercise of options and warrants outstanding at the date hereof or issued in accordance with the foregoing clause (ii) and (iv) issuances of Common Stock (or any securities convertible into or exercisable for Common Stock) in connection with the acquisition of any related business, product or technology; provided, however, that in the case of issuances pursuant to clause (iv) above, any such shares of Common Stock issued in acquisitions shall be contractually restricted from resale for at least the duration of the 90-day restricted period described above; and, provided further, however, that Common Stock issued in connection with the Company's acquisition of Medicus Systems Corporation ("Medicus") shall not be restricted from resale. The Company has caused or will cause each of its current directors and executive officers to furnish a letter or letters, in the form of Exhibit A hereto, pursuant to which each such person shall agree not to offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) for a period of 90 days after the date of the Offering Memorandum without the prior written consent of Smitx Xxxxxx Xxx., except as otherwise provided therein.
(k) Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, 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 Debentures to facilitate the sale or resale of the Debentures. Except as permitted by the Act, the Company will not distribute any offering material in connection with the Exempt Resales.
(l) The Company will use its reasonable best efforts to cause the Debentures to be eligible for trading on PORTAL.
(m) The Company will have, as of the date of this Agreement and for so long as the Debentures are outstanding, available free from pre-emptive rights, and reserved for issuance upon conversion of the Debentures, a number of authorized but unissued shares of Common Stock which, when added to the number of shares of Common Stock held in its treasury, will be sufficient to honor the conversion in full of all outstanding Debentures.
(n) From and after the Closing Date, so long as any of the Debentures are outstanding and are "Restricted Securities" within the meaning of Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of the Debentures and prospective purchasers of Debentures designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Debentures.
(o) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in such states respect of any security (as Distributor may designate. Concurrent defined in the Act) that would be integrated with the effectiveness sale of the Debentures in a manner that would require the registration under the Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Debentures.
(p) The Company agrees to comply with all of the terms and conditions of the Registration StatementRights Agreement, and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Debentures by DTC for "book entry" transfer.
(q) The Company agrees that prior to any registration of the Debentures pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Company Indenture shall provide be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and will cause to the Distributor be entered into any necessary supplemental indentures in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsconnection therewith.
Appears in 1 contract
Samples: Purchase Agreement (Quadramed Corp)
Agreements of the Company. 5.1 The Company will notagrees with you that:
(a) It will, either prior to the Effective Date if necessary or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Unitslaw, file any an amendment or supplement to the Registration Statement or the Prospectusor, whether if necessary pursuant to Rule 430A under the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such post-effective amendment or amendments to the Registration Statement Statement, as soon as practicable after the execution and such supplement or supplements delivery of this Agreement, and will use its best efforts to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend cause the Registration Statement and/or so supplement or such post-effective amendment to become effective at the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 earliest possible time. The Company will notify comply fully and in a timely manner with the Distributor promptlyapplicable provisions of Rule 424 and Rule 430A under the Act.
(b) It will advise you promptly and, and will if requested by you, confirm such advice in writing, (i) when of the effectiveness of any amendment to the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; Statement, (ii) of the transmission to the Commission for filing of any request supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the SEC for amendments or supplements Prospectus and to furnish you with copies thereof, (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or requests by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that such purpose by the Commission or the threat thereof; any state securities commission or other regulatory authority, and (ivv) of the happening of any event that during the period referred to in the judgment of the Company paragraph (e) below which makes any statement Statement of a material fact made in the Registration Statement (as amended or the Prospectus supplemented from time to time) untrue or that which requires the making of any additions to or changes in the Registration Statement (as amended or supplemented from time to time) in order to make the statements therein not misleading or that makes any statement of a material fact made in the Prospectus (as amended or supplemented from time to time) untrue or which requires the making of any additions to or changes in the Prospectus (as amended or supplemented from time to time) in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) . If at any time the Commission shall issue any stop order suspending the effectiveness of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, or any preliminary prospectus, state securities commission or other regulatory authority shall issue an order suspending the Prospectus. For purposes of this section, informal requests by qualification or acts exemption of the SEC staff shall not be deemed actions Shares under any state securities or Blue Sky laws, the Company shall, if reasonably requested by you, use every reasonable effort to obtain the withdrawal or lifting of or requests by such order at the SECearliest possible time.
5.3 The Company (c) It will comply furnish to the Underwriters without charge two (2) signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits filed therewith or incorporated by reference therein, and will furnish to you and each Underwriter designated by you such number of conformed copies of the provisions Registration Statement as so filed and of each amendment to it, without exhibits, as you may reasonably request.
(d) It will not file any undertakings contained in amendment to the Registration Statement, or make any amendment or supplement to the Prospectus, of which you shall not previously have been advised and provided a copy prior to the filing or making thereof or to which you shall reasonably object; and it will prepare and file with the Commission, promptly upon your reasonable request, any amendment to the Registration Statement or any amendment or supplement to the Prospectus that 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.
5.4 On (e) For such period as in the Effective Dateopinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by an Underwriter or a dealer, it will furnish to each Underwriter and thereafter from time to time, the Company will deliver to the Distributor, dealer without charge and in a timely manner, as many copies of the Prospectus (and of any printed supplemental material amendment or supplement to the Prospectus) as the Distributor such Underwriter or dealer may reasonably request. request for the purposes contemplated by the Act.
(f) If during such the period of time specified in paragraph (e) any event shall occur that as a result of which, in the judgment opinion of counsel for the Company Underwriters, it becomes necessary to amend or the Distributor should be set forth in supplement the Prospectus in order to make any statement the statements therein, in the light of the circumstances under which it was madeexisting as of the date the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement or amend the Prospectus to comply with lawthe Act, the Company will forthwith it will, as promptly as practicable, prepare and duly file with the SEC Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or amendment theretosupplemented, will not, in the light of the circumstances existing as of the date the Prospectus is so delivered, be misleading, and so that the Prospectus and will comply with the Act, and will deliver furnish to the Distributor, each Underwriter and to such dealers as you shall specify without charge, charge such number of copies thereof as the Distributor such Underwriter and such dealers may reasonably request.
5.5 At its own expense(g) Prior to any public offering of the Shares, it will cooperate with you and counsel for the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary Underwriters in connection with the registration or qualification of the Units 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 (provided, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject). The Company will continue such states qualification in effect so long as Distributor required by law for distribution of the Shares and will file such consents to service of process or other documents as may designate. Concurrent be necessary 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 general consent to service of process in any jurisdiction in which it is not now so subject).
(h) It will make generally available to its security holders as soon as reasonably practicable a consolidated earnings statement covering a period of at least twelve months beginning after the "effective date" (as defined in Rule 158 under the Act) of the Registration Statement (but in no event commencing later than 90 days after such date) which shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(i) It will timely complete all required filings and otherwise comply fully in a timely manner with all provisions of the Securities Exchange Act of 1934, as amended, including the rules and regulations thereunder (collectively, the "Exchange Act"), to cause the Shares to be registered pursuant thereto.
(j) During the period of five years after the date of this Agreement, to furnish to you as soon as available a copy of each report or other publicly available information of the Company mailed to the holders of its Common Stock or filed with the effectiveness Commission and such other publicly available information concerning the Company and its Subsidiaries as you may reasonably request.
(k) It will use the proceeds from the sale of the Shares in the manner described in the Prospectus under the Caption "Use of Proceeds."
(l) It has not taken and will not take, directly or indirectly, any action designed, or that might reasonably be expected, to cause or result in stabilization or manipulation of the market price of the Common Stock to facilitate the sale or resale of the Shares.
(m) 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 Closing Date or any Option Closing Date and to satisfy all conditions precedent to the delivery of the Shares.
(n) To use its best efforts to maintain the inclusion of such Common Stock in the NASDAQ National Market System (or on a national securities exchange) for a period of five years after the effective date of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.
Appears in 1 contract
Samples: Underwriting Agreement (Pride Petroleum Services Inc)
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Underwriter:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered in connection with sales of by the UnitsUnderwriter or any dealer, file including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Underwriter of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriter and to any dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet for the Securities containing only a description of the Securities, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Underwriter, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Underwriter, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Underwriter shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule I hereto. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule I hereto, or (iii) (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise the Underwriter promptly and, if requested by the Underwriter, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon the Underwriter’s reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by the Underwriter, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company shall provide will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to the Distributor Underwriter, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to the Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as the Underwriter may reasonably request.
(h) During the Prospectus Delivery Period, to furnish to the Underwriter and any dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as the Underwriter or any such dealer may reasonably request.
(i) Prior to any public offering of the Securities, to cooperate with the Underwriter and counsel for the Underwriter in writing connection with the registration or qualification of the Securities for offer and sale by the Underwriter and by any dealers under the state securities or Blue Sky laws of such jurisdictions as the Underwriter may request, to continue such qualification in effect so long as required for distribution of the Securities 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 that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a list period of those states at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and other jurisdictions Rule 158 under the Securities Act.
(k) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in which stockholders’ equity as of the Units are qualified end of and for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor will 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriter relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriter or by any dealers to whom Securities may be sold, (vi) the rating agencies in connection with the ratings of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell Units only or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities; provided, however, the Company may, at any time, offer or sell or announce the offering of commercial paper issued in such states the ordinary course of business.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(o) To use its best efforts to do and perform all things required or jurisdictions necessary to be 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 Securities.
(p) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with such restrictions and requirementsany stabilization or manipulation of the price of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will, upon request of the SEC staff shall not be deemed actions Representative, furnish to the Representative, without charge, a copy of each of the Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, to the extent and for so long as Distributor may designate. Concurrent required under the Rules and Regulations, furnish to its stockholders, within the time period required by the Exchange Act, 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, within the time period required by the Exchange Act, after the end of each of the first three quarters of each fiscal year (beginning with the effectiveness fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earnings statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Representative all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NGM, (vi) any filings required to be made in connection with clearance of the offering of the Shares with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company shall provide (but not those of counsel for the Underwriters, except as otherwise provided herein) and the Accountants, (ix) the transfer agent for the Shares, and (x) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings).
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(k) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Xxxxxxx & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee plans disclosed in the Prospectus or pursuant to the Distributor conversion of convertible securities or the exercise of warrants in writing each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a list material event relating to the Company occurs or (b) prior to the expiration of those states such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxxx & Company, LLC waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of Xxxxxxx & Company, LLC.
(n) The Company will cause each of its executive officers and other jurisdictions directors and certain stockholders designated by the Representative and identified on Schedule V hereto to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of Xxxxxxx & Company, LLC, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsSchedule IV hereto.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4(a) To advise DLJ promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor DLJ, to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, and (iv) of the happening of any event that during the period referred to in the judgment of the Company Section 1(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of at any time the Commission shall issue any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in stop 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to DLJ 2 signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to DLJ such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as DLJ may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be satisfactory to DLJ and Foundation, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 1(d) below, not to file any further amendment to the Registration Statement and not to make any amendment or supplement to the Prospectus of which DLJ and Foundation shall not previously have been advised or to which DLJ or Foundation shall reasonably object after being so advised; and, during such period, to prepare and file with the Commission, promptly upon DLJ's and Foundation's 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 cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for DLJ and Foundation a prospectus is required by law to be delivered in connection with sales by DLJ or a dealer, to furnish in New York City to DLJ 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 DLJ or such dealer may reasonably request.
(e) If during the period specified in Section 1(d) above, any event shall occur or condition shall exist as a result of which, in the opinion of counsel for DLJ or Foundation, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for DLJ or Foundation, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Securities and Exchange Commission (the "Commission") an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in 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 DLJ and to any dealer as many copies thereof as DLJ or such dealer may reasonably request.
(f) To make available to DLJ and to Foundation all financial and other information concerning its business and operations which DLJ or Foundation reasonably request and will provide access to the Company's officers, directors, employees, independent accountants and legal counsel.
(g) Prior to any offer or sale of the Shares, and each time the Company prepares or files financial statements, the Company shall provide DLJ and Foundation with:
(i) A certificate signed by the Company's Chief Executive Officer or Chief Financial Officer confirming that the representation and warranties of the Company in this Agreement are true and correct on and as of the date of such certificate with the same force and effect as if made on and as of such date, and that the Company has complied with all of the agreements herein contained and required to be complied with or satisfied by the Company on or prior to such date.
(ii) A letter, in form and substance satisfactory to DLJ and Foundation, from PricewaterhouseCoopers LLC, independent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the Distributor financial statements and certain financial information contained in writing a list of those states the Registration Statement and the Prospectus.
(iii) An opinion (satisfactory to DLJ, Foundation and their respective counsel) to the effect that the Registration Statement and the Prospectus and any supplement or amendment thereto (except for the financial statements and other jurisdictions in financial data included therein as to which no opinion need be expressed) comply as to form with the Units are qualified for saleAct, together with restrictions and requirements applicable thereto(A) such counsel has no reason to believe that at the time the financial statements were prepared, the Registration Statement and the Distributor will sell Units only in Prospectus included therein (except for the financial statements and other financial data as to which such states counsel need not express any belief) contain any untrue statement of a material fact or jurisdictions and in compliance with such restrictions and requirements.omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading and
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will, upon request of the SEC staff shall not be deemed actions Representative, furnish to the Representative, without charge, one signed copy of each of the Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, to the extent and for so long as Distributor may designate. Concurrent required under the Rules and Regulations and to the extent not available on XXXXX or a successor system, furnish to its stockholders, within the time periods required by the Exchange Act, 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, within the time periods required by the Exchange Act, after the end of each of the first three quarters of each fiscal year (beginning with the effectiveness fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NNM, (vi) any filings required to be made in connection with clearance of the offering of the Shares with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided herein) and of the Accountants, (ix) the transfer agent for the Shares, and (x) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings), and (xi) all other costs and expenses of the Underwriters incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriters (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Company be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $100,000 in the aggregate.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(k) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Xxxxxxx & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock options and restricted stock units disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxxx & Company, LLC waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of Xxxxxxx & Company, LLC.
(n) The Company will cause each of its executive officers, and directors to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of Xxxxxxx & Company, LLC, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in Schedule III hereto.
(o) Prior to the termination of the Option, the Company shall provide not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Distributor in writing a list Company, the financial condition, results of those states and other jurisdictions in which operations, business, properties, assets, or liabilities of the Units are qualified for saleCompany, together with restrictions and requirements applicable theretoor the offering of the Shares, and without prior notice to the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsRepresentatives.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Representative, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At its own expense, the . The Company agrees to prepare, execute, and will not file any document under the Exchange Act or the Exchange Act Rules and all Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, without providing Underwriters and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to take all actions that may be reasonably necessary in connection any proposed filing. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the qualification of the Units for sale information contained in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company shall provide will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company will cooperate with the Representative and counsel to the Distributor Underwriters in writing a list connection with the registration or qualification of those states the Shares for offer and other sale under the securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in which no event shall the Units are Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified for saleor to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, together with restrictions so long as required under the Rules and requirements applicable theretoRegulations, to the extent not available on the Commission’s XXXXX system or any successor system, furnish to its stockholders within the time periods required by the Exchange Act and the Distributor NGM an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will sell Units only make generally available to holders of its securities as soon as may be practicable, but in such states or jurisdictions no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and in compliance with such restrictions and requirements.Regulations). For the purpose of the
Appears in 1 contract
Samples: Underwriting Agreement (Netlist Inc)
Agreements of the Company. 5.1 The Company will notagrees with the Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any it is necessary for a post-effective amendment or supplement to the Registration Statement to be declared or to become effective before the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion offering of the Distributor's counselSecurities may commence, be necessary or advisable. Subject the Company will use its best efforts to Section 5.4cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soRepresentatives, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any immediately after such post-effective amendment thereto becomes has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) 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 or the circumstances then prevailing not misleading or (y) conflict with the information contained in the Registration Statement, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments, or request by the SEC Commission or its staff on or for amendments an amendment of or supplements a supplement to the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or for additional informationinformation regarding the Company, and of all action by the SEC with respect to any amendment to any Registration Statement its affiliates or Prospectus that may be filed from time to time its filings with the SECCommission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that such purpose or any examination pursuant to Section 8(e) of the threat thereofAct relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Securities; (iii) 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 institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event that event, which results in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements 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 the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) The Company will furnish to the Representatives and counsel to the Representatives, without charge: (i) ten (10) 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 the Underwriters may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) ten (10) copies of the exhibits to the Incorporated Documents. The Company will pay all of the expenses of printing or other production of all documents relating to the offering.
(e) 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 the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Execution Time to the Closing Time and will furnish the Representatives with all the provisions copies of any undertakings contained in the Registration Statementsuch documents a reasonable amount of time prior to such proposed filing.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and the Company will expeditiously deliver to the DistributorUnderwriters and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any printed supplemental material Issuer Free Writing Prospectus as the Distributor Representatives 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 Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by any Underwriters or dealers. If during such period of time time: (i) any event shall occur that as a result of which, in the judgment of the Company Company, or the Distributor should be set forth in the opinion of counsel for the Underwriters, the Prospectus in order as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make any statement the statements therein, in the light of the circumstances under which it was madewhen the Prospectus is delivered to a purchaser, not misleading, ; or (ii) if it is necessary to supplement the Prospectus or amend the Prospectus Registration Statement (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Company will promptly notify the Representatives of such event and forthwith prepare and duly and, subject to the provisions of paragraph (e) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and the Representatives agree that the Prospectus should be amended or supplemented, the Company, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will: (i) cooperate with the Underwriters and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Distributor Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Securities; (iii) pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; and (iv) file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(t) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. 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 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will make generally available to its security holders and to the Representatives a consolidated earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of this Agreement 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.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Company will furnish to the Representatives: (i) as soon as available, if requested, 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 the Representatives may reasonably request.
5.5 At its own expense(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof, or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection comply with the qualification terms or fulfill any of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness conditions of the Registration Statementthis Agreement, the Company shall provide reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Securities substantially in accordance with the description set forth in the Prospectus.
(m) If Rule 430A, 430B or 430C of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise the Underwriters of the time and manner of such filing.
(n) 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, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(o) The Company will comply and will use its best efforts to cause its tenants to comply in all material respects with all applicable Environmental Laws (as hereinafter defined).
(p) The Company will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and to continue to have each of its corporate subsidiaries (other than its taxable REIT subsidiaries) comply with all applicable laws and regulations necessary to maintain a status as a REIT or a “qualified REIT subsidiary” under the Code.
(q) The Company will use all reasonable best efforts to do or perform all things required to be done or performed by the Company prior to the Distributor Closing Date to satisfy all conditions precedent to the delivery of the Securities pursuant to this Agreement.
(r) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in writing the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, directly or indirectly, including the filing (or participation in the filing) of a list registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of those states Section 16 of the Exchange Act, any debt securities or guarantees thereon (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.
(s) The Company will comply with all applicable securities and other jurisdictions in which applicable laws, rules and regulations, including, without limitation, the Units are qualified for sale, together with restrictions and requirements applicable theretoXxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and will use its best efforts to cause the Distributor Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(t) Unless requested otherwise by the Representatives, the Company will sell Units only prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in the form attached hereto or as previously provided to, and approved by the Representatives and will file such states or jurisdictions final term sheet with the Commission as soon as practical after the Execution Time. The Company will file any other Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act and will pay any required registration fee for this offering pursuant to Rule 456(b)(1) under the Act within the time period required by such rule (without regard to the proviso therein relating to the four (4) Business Days extension to the payment deadline) and in compliance any event prior to the Closing Date. The Company will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with such restrictions and requirementsthe Commission in accordance with Rule 433(g) under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (National Retail Properties, Inc.)
Agreements of the Company. 5.1 The Company agrees with the several Purchasers that:
(a) The Company will notadvise you promptly of any proposal to amend or supplement the Registration Statement, either any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus with respect to any Purchased Bonds, and will furnish you a copy thereof prior to the Effective Date or thereafter during such period as filing thereof with the Prospectus is required by law Commission.
(b) The Company will furnish to be delivered in connection with sales you copies of the Units, file any amendment or supplement registration statement relating to the Registration Statement or Bonds as originally filed and all amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related Pre-Pricing Prospectus, whether pursuant Permitted Free Writing Prospectus, Prospectus, and all amendments and supplements to such documents (except amendments to exhibits and supplements relating to Bonds that are not Purchased Bonds), in each case as soon as available and in such quantities as you reasonably request for the 1933 purposes contemplated by the Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of .
(c) If at any time prior to the filing thereof and of the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated Prospectus, with respect to propose from time to time such amendment or amendments each Pre-Pricing Prospectus or, thereafter, with respect to the Registration Statement and such supplement or supplements Prospectus, when a prospectus relating to the Purchased Bonds is required to be conveyed under the Act or the Rules and Regulations, any event occurs as a result of which such Pre-Pricing Prospectus asor the Prospectus, in the light of future developmentsas applicable, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been as then amended or supplemented and when would include any post-effective amendment thereto becomes effective; (ii) untrue statement of any request by the SEC for amendments a material fact, or supplements omit to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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 at any time to amend or supplement such Pre-Pricing Prospectus or amend the Prospectus Prospectus, as applicable, to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Purchasers and promptly prepare and duly file with the SEC Commission an amendment or supplement to the Registration Statement or any appropriate supplement filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and convey in connection therewith, such Pre-Pricing Prospectus or Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations; provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company’s obligation under this Section 4(c)); provided further, that any such Pre-Pricing Prospectus or Prospectus or amendment thereto, or supplement required later than nine months from the date hereof shall be furnished at the Purchasers’ sole expense.
(d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Bonds for offering and sale under the securities laws of any state or jurisdiction of the United States as the Purchasers may reasonably request and will deliver use its best efforts to continue such qualification in effect so long as required for the Distributordistribution of the Purchased Bonds; provided, without chargehowever, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such number of copies thereof as state or jurisdiction or to comply with any other requirement deemed by the Distributor may reasonably requestCompany to be unduly burdensome.
5.5 At (e) The Company will make generally available to its own expensesecurity holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement.
(f) For a period of one year, the Company agrees will furnish to prepare, executeyou copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and file copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any and all documents and information filed by the Company on the Commission’s EXXXX system will be deemed furnished to take all actions that may be reasonably necessary you in connection with satisfaction of this clause (f).
(g) The Company will apply the qualification net proceeds from the offering of the Units for sale Purchased Bonds as set forth under the caption “Use of proceeds” in the Prospectus Supplement.
(h) The Company will record and file the Supplemental Indenture pertaining to the Purchased Bonds in each place in which such states as Distributor may designate. Concurrent recording or filing is required to protect and preserve the lien of the Indenture and will pay all taxes and recording fees required to be paid with respect to the execution, recording and filing of the Supplemental Indenture and the issuance of the Purchased Bonds.
(i) If a public offering of the Purchased Bonds is to be made, the Company will not offer or sell any of its other debt securities which are substantially similar to the Purchased Bonds prior to ten business days after the Closing Date without the consent of the Purchasers.
(j) The Company will 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 use of any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, of the suspension of the qualification of the Purchased Bonds for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Base Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the Registration Statement, or suspending any such qualification, promptly to use its reasonable best efforts to obtain the prompt withdrawal of such order.
(k) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of [ ] on behalf of the Purchasers, it will not make, any offer relating to the Purchased Bonds that would constitute an “issuer free writing prospectus” (as defined in Rule 433 of the Act) 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; provided that the prior written consent of [ ] on behalf of the Purchasers shall provide be deemed to have been given in respect of the Distributor in Permitted Free Writing Prospectuses. The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an issuer free writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable theretoprospectus, and (ii) has complied and will comply, as the Distributor will sell Units only case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in such states or jurisdictions respect of timely filing with the Commission, legending and in compliance with such restrictions and requirementsrecord keeping.
Appears in 1 contract
Samples: Purchase Agreement (Empire District Electric Trust Ii)
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Representative, without charge, one signed copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Nxxxxxx & Company, LLC and, if requested by Nxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor may designate. Concurrent required under the Rules and Regulations, to the extent not available on the Commission’s EXXXX system or any successor system, furnish to its shareholders within the periods required under the Rules and Regulations, after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and after the end of each of the first three quarters of each fiscal year (beginning with the effectiveness fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Representative all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NGM, (vi) any filings required to be made in connection with clearance of the offering of the Shares with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company shall provide and of the Accountants, (ix) the transfer agent for the Shares, (x) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings), and (xi) all other costs and expenses of the Underwriters incident to the Distributor in writing a list performance of those states their obligations hereunder not otherwise specifically provided for herein, including the reasonable fees, disbursements and other jurisdictions charges of counsel to the Underwriters (in which addition to those set forth in clauses (vi) and (vii)).
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the Units are qualified for sale, together with restrictions price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(k) The Company will apply the net proceeds from the offering and requirements applicable thereto, sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Distributor Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Nxxxxxx & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Nxxxxxx & Company, LLC waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of Nxxxxxx & Company, LLC, grant options to purchase shares of Common Stock at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of Nxxxxxx & Company, LLC.
(n) The Company will cause each of its executive officers and directors to, enter into lock-up agreements with Nxxxxxx & Company, LLC to the effect that they will not, without the prior written consent of Nxxxxxx & Company, LLC, sell, contract to sell Units only or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in such states or jurisdictions and in compliance with such restrictions and requirementsSchedule III hereto.
Appears in 1 contract
Samples: Underwriting Agreement (Lecroy Corp)
Agreements of the Company. 5.1 The Company agrees with the Initial Purchasers as follows:
(a) The Company will not, either prior to advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchasers promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do sothem, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, within the period of time referred to in paragraph (ie) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) below, of any request by change in the SEC for amendments Company's condition (financial or supplements to the Registration Statement other), business, prospects, properties, net worth or the Prospectus results of operations, or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) 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 Offering Memorandum (vas then amended or supplemented) of receipt by the Company or to comply with any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEClaw.
5.3 (b) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver furnish to the DistributorInitial Purchasers, without charge and in a timely mannercharge, as many of the date of the Offering Memorandum, such number of copies of the Prospectus and any printed supplemental material Offering Memorandum, as the Distributor it may then be amended or supplemented, as they may reasonably request. If during .
(c) The Company will not make any amendment or supplement to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which they shall reasonably object after being so advised or file any document which upon filing becomes an Incorporated Document, without delivering a copy of such period document to the Initial Purchasers, prior to or concurrently with such filing.
(d) The Company consents to the use of the Offering Memorandum (and of any amendment or supplement thereto) in accordance with the securities or Blue Sky laws of the jurisdictions in which the Debentures are offered by the Initial Purchasers and by all dealers to whom Debentures may be sold, in connection with the offering and sale of the Debentures.
(e) If, at any time prior to completion of the distribution of the Debentures by the Initial Purchasers to Eligible Purchasers, any event shall occur that in the judgment of the Company or in the Distributor opinion of counsel for the Initial Purchasers should be set forth in the Prospectus Offering Memorandum (as then amended or supplemented) in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum, or to file under the Exchange Act any document which upon filing becomes an Incorporated Document, to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment theretothereto or such document, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchasers and dealers a reasonable number of copies thereof as thereof. In the Distributor may reasonably requestevent that the Company and the Initial Purchasers agree that the Offering Memorandum should be amended or supplemented, or that a document should be filed under the Exchange Act which upon filing becomes an Incorporated Document, the Company, if requested by the Initial Purchasers, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement or such document.
5.5 At its own expense, (f) The Company will cooperate with the Company agrees to prepare, execute, Initial Purchasers and file any and all documents and to take all actions that may be reasonably necessary with their counsel in connection with the qualification of the Units Debentures and the Common Stock issuable upon conversion of the Debentures for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such 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 service of process in suits, other than those arising out of the offering or sale of the Debentures, in any jurisdiction where it is not now so subject.
(g) So long as any of the Debentures are outstanding, the Company will furnish to the Initial Purchasers (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 the Initial Purchasers may request.
(h) 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 Initial Purchasers terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchasers 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 Initial Purchasers for all out-of-pocket expenses (including fees and expenses of its counsel) reasonably incurred by them in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(i) The Company will apply the net proceeds from the sale of the Debentures to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum.
(j) Without the prior consent of Xxxxx Xxxxxx Inc., prior to the expiration of 90 days after the date of the Offering Memorandum 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 (i) the sale of the Debentures to the Initial Purchasers pursuant to this Agreement and issuances of Common Stock upon conversion of Debentures, (ii) grants of options pursuant to the Company's stock option plans existing on the date hereof, (iii) issuances of Common Stock upon exercise of options and warrants outstanding at the date hereof or issued in accordance with the foregoing clause (ii), and (iv) issuances of an aggregate of up to four million shares of Common Stock in connection with acquisitions. The Company has caused or will cause its Chief Executive Officer to furnish a letter, in form and substance satisfactory to Xxxxx Xxxxxx Inc., pursuant to which such person shall agree not to offer, sell, contract to sell or otherwise dispose of any Common Stock (or any securities convertible into or exercisable or exchangeable for Common Stock) for a period of 90 days after the date of the Offering Memorandum without the prior written consent of Xxxxx Xxxxxx Inc.
(k) Except as stated in this Agreement and in the Offering Memorandum, 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 Debentures to facilitate the sale or resale of the Debentures. Except as permitted by the Act, the Company will not distribute any offering material in connection with the Exempt Resales.
(l) The Company will use its best efforts to cause the Debentures to be eligible for trading on The PORTAL Market.
(m) From and after the Closing Date, so long as any of the Debentures are outstanding and are "Restricted Securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of the Debentures and prospective purchasers of Debentures designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Debentures.
(n) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in such states respect of any security (as Distributor may designate. Concurrent defined in the Act) that would be integrated with the effectiveness sale of the Debentures in a manner that would require the registration under the Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Debentures.
(o) The Company agrees to comply with all of the terms and conditions of the Registration StatementRights Agreement, and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Debentures by DTC for "book entry" transfer.
(p) The Company agrees that prior to any registration of the Debentures pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Company Indenture shall provide be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and will cause to the Distributor be entered into any necessary supplemental indentures in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsconnection therewith.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will not, either prior agrees with you:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered in connection with sales of by the UnitsUnderwriter or a dealer, file including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the opinion of the Underwriter it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Underwriter of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriter and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, in the opinion Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Distributor's counselUnderwriter, it will not make, any offer relating to the Shares that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Underwriter shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule I hereto. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a written request from Distributor “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to do soany Permitted Free Writing Prospectus, Distributor mayincluding in respect of timely filing with the Commission, at its optionlegending and record keeping. The Company consents to the use by the Underwriter of (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, terminate this Agreement(ii) any Issuer Free Writing Prospectus listed on Schedule I hereto, or (iii) information describing the preliminary terms of the Shares or their offering.
5.2 The Company will notify the Distributor promptly(e) To advise you promptly and, and will if requested by you, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon your reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Shares by you, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company shall provide will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) To furnish to you, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you 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.
(g) During the Prospectus Delivery Period, to furnish to the Distributor Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as the Underwriter or dealer may reasonably request.
(h) Prior to any public offering of the Shares, to cooperate with you and counsel for the Underwriter in writing 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 you may request, to continue such 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 that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to 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.
(i) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a list period of those states at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and other jurisdictions Rule 158 under the Securities Act.
(j) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the record holders of its Shares a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in which stockholders’ equity as of the Units are qualified end of and for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor 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 pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states (including in each case the fees and disbursements of counsel for the Underwriter relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriter or by dealers to whom Shares may be sold, (vi) the preparation, issuance, execution and delivery of the Shares and (vii) the fees and expenses of any transfer agent or registrar in connection with the Shares.
(l) To apply the net proceeds from the sale of the Shares in the manner described under the caption “Use of Proceeds” in the Prospectus.
(m) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Shares.
(n) For the period ending 75 days after the date of the Prospectus, the Company will not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell Units only any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) 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 states transaction described in clause (i) or jurisdictions (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Underwriter, other than (v) the Shares to be sold hereunder, (w) the issuance of shares of Common Stock upon the exercise of an option or warrant or conversion of a security outstanding on the date of this Agreement, (x) grants and issuances of shares of Common Stock, options to acquire Common Stock or other derivative securities pursuant to stock-based compensation or incentive plans of the Company, (y) the issuance of shares of Common Stock pursuant to the Company’s dividend reinvestment plans or employee stock purchase plans, and (z) the issuance, offer or sale of a Tier 1 instrument.
(o) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with any stabilization or manipulation of the price of the Shares.
(p) To use its best efforts to list, subject to notice of issuance, the Shares on the New York Stock Exchange (“NYSE”) and to maintain such restrictions and requirementslisting.
(q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company agrees with each of the several Underwriters as follows:
(a) The Company will not, either prior to from the Effective Execution Date or thereafter during until the end of such period as the Final Prospectus is required by law to be delivered in connection with sales of the UnitsSecurities by an Underwriter or dealer, file any amendment or supplement to the Registration Statement or the Final Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy draft thereof shall first have been submitted to the Distributor Representatives within a reasonable period of time prior to the filing thereof and the Distributor Representatives shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representatives promptly, and will confirm such advice in writing, (i1) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto to the Registration Statement becomes effective; , (ii2) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Final Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii3) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv4) of the 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 requires the Company to file an amendment or supplement to the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v5) of receipt by the Company Company, or any representative representatives or attorney of the Company Company, of any other communication from the SEC Commission relating to the Company, the Registration Statement, the Basic Prospectus, any preliminary prospectus, Preliminary Prospectus or the Prospectus. For purposes of this section, informal requests by Final Prospectus or acts the offering of the SEC staff Securities. If at any time the Commission shall not be deemed actions issue any order suspending the effectiveness of or requests by the SECRegistration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment.
5.3 (c) The Company will furnish to the Representatives, without charge, one complete copy of the Registration Statement and 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 furnish 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.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 (e) On the Effective Date, and thereafter from time to time, the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many copies of the Final Prospectus and or any printed supplemental material supplement thereto, as the Distributor Representatives may reasonably request. The Company consents to the use of any Preliminary Prospectus and the Final Prospectus or any amendment or supplement thereto by the several Underwriters and by all dealers to whom the Securities may be sold, both in connection with the offering or sale of the Securities and for any period of time thereafter during which a prospectus is required by law to be delivered in connection therewith. If during such period of time time, any event shall occur that which in the judgment of the Company or counsel to the Distributor 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 mademade when delivered, not misleading, or if it is necessary to supplement or amend the Final Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof as the Distributor 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.
5.5 At its own expense(f) Prior to any public offering of the Securities by the Underwriters, the Company agrees will cooperate with the Representatives and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and each other Underwriter who may so request copies of such states financial statements and other periodic and special reports as Distributor the Company may designate. Concurrent 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 effectiveness Commission.
(h) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth 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).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Representatives, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to
(1) 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, (2) the preparation and delivery of certificates representing the Securities, (3) the printing of this Agreement, any 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 Company shall provide 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, (5) any filings required to be made by the Distributor in writing a list of those states and other jurisdictions in which Underwriters with the Units are qualified for sale, together with restrictions and requirements applicable theretoNASD, and the Distributor fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (6) the registration or qualification of the Securities 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) counsel to the Company, (8) the transfer agent and registrar for the Securities, (9) the rating of the Securities by one or more rating agencies and (10) the Trustee and any agent of the Trustee and the fees, disbursements and other charges of counsel for the Trustee in connection with the Indenture and the Securities.
(j) If this Agreement shall be terminated by the Company pursuant to any of the provisions hereof (other 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 Securities to facilitate the sale or resale of any of the Securities.
(l) The Company will apply the net proceeds from the offering and sale of the Securities in the manner set forth in the Final Prospectus under "Use of Proceeds".
(m) Until sixty (60) days from the Execution Date, the Company will not, without the consent of the Representatives, offer, sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementscontract to sell, or otherwise dispose of, by public offering, or announce the public offering of, any other debt securities of the Company other than the Securities.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but In the case of any report on Form 8-K furnished to the Representative for review hereunder, the Representative shall use commercially reasonable efforts to complete its review within one business day after receiving the report, and its failure to complete the review by such time shall not be obligated to propose from time to time such amendment or amendments to delay the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion Company’s timely filing of the Distributor's counsel, Form 8-K.
(b) So long as delivery of a prospectus by an Underwriter or dealer may be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt required by the Company Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of a written request from Distributor to do sothe Rules and Regulations), Distributor may, at its option, terminate this Agreement.
5.2 The the Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented becomes effective or any amendment or supplement to the Prospectus has been filed, in each case prior to the later of the applicable Option Closing Date and when any post-effective amendment thereto becomes effective; the completion of the distribution of the Shares, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement prior to the later of the applicable Option Closing Date and the completion of the distribution of the Shares or preventing or suspending the use of the Base Prospectus or any preliminary prospectus in connection with the distribution of the Shares, or preventing or suspending the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus to the extent such communication related to the use of such documents in connection with the distribution of the Shares. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement prior to the later of the applicable Option Closing Date and the completion of the distribution of the Shares or preventing or suspending the use of the Base Prospectus or any preliminary prospectus in connection with the distribution of the Shares or the use of the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will use commercially reasonable efforts to obtain the withdrawal of such order at the earliest possible moment. For purposes If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings required in connection with the distribution of the Shares. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) So long as delivery of a prospectus by an Underwriter or acts dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the SEC staff shall not be deemed actions Rules and Regulations), the Company will furnish to each Representative, without charge, a copy of one signed copy of each of the Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 The (d) Prior to the completion of the distribution of the Shares, the Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, unless a copy of such document 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; provided, that in the case of any report on Form 8-K furnished to the Representatives for review hereunder, the Representatives shall use all commercially reasonable efforts to complete their review within one business day after receiving the report, and its failure to complete the review by such time shall not delay the Company’s timely filing of the Form 8-K. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in such states as Distributor may designate. Concurrent no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject or assume any ongoing reporting obligations to any governmental or other authorities in any jurisdiction.
(g) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, if applicable, (iii) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (iv) the listing of the Shares on the NGSM, (v) any filings required to be made in connection with clearance of the offering of the Shares with FINRA (including the reasonable documented fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vi) the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the documented fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (vii) documented fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided herein) and of the Accountants, (viii) the transfer agent for the Shares, (ix) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of any of the Underwriters; in the event that the Underwriters and the Company shall provide charter any aircraft or other transportation in connection with the “road show,” the Underwriters and the Company shall each pay 50% of the cost incurred), and (x) all other costs and expenses of the Underwriters incident to the Distributor in writing a list performance of those states their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other jurisdictions charges of counsel to the Underwriters (in which addition to those set forth in clauses (v) and (vi)); provided, however, that in no event under this clause (x) shall the Units are qualified for saleCompany be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $90,000 in the aggregate.
(h) The Company will not at any time, together with restrictions directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(i) The Company will apply the net proceeds from the offering and requirements applicable thereto, sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Distributor Prospectus under “Use of Proceeds.”
(j) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Xxxxxxx & Company, LLC, the Company will sell Units only not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than (i) the issuance of the Shares, (ii) the grant of options, restricted stock, restricted stock units, Common Stock or other securities pursuant to stock option and equity incentive plans disclosed in the Prospectus, (iii) upon the purchase and issuance of Common Stock, exercise of options or vesting of restricted stock or restricted stock units granted pursuant to stock option and equity incentive plans disclosed in the Prospectus, or (iv) pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such states transaction described in clause (1) or jurisdictions (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
(k) During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company (other than a registration statement on Form S-8) without the prior written consent of Xxxxxxx & Company, LLC.
(l) The Company will cause each of its officers and directors to deliver lock-up agreements to the Representative in compliance with such restrictions and requirementssubstantially the form set forth in Schedule IV hereto.
Appears in 1 contract
Samples: Underwriting Agreement (Axt Inc)
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Underwriters:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriters and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet for the Securities containing only a description of the Securities, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of the Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise the Representatives promptly and, if requested by the Representatives, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon the Representatives’ reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by the Underwriters, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to each Underwriter, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to each Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as such Underwriter may reasonably request.
(h) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(i) Prior to any public offering of the Securities, to cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Representatives may request, to continue such qualification in effect so long as required for distribution of the Securities 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(k) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the Distributor record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor will 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (vi) the rating agencies in connection with the ratings of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell Units only or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities; provided, however, the Company may, at any time, offer or sell or announce the offering of commercial paper issued in such states the ordinary course of business.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(o) To use its best efforts to do and perform all things required or jurisdictions necessary to be 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 Securities.
(p) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with such restrictions and requirementsany stabilization or manipulation of the price of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 4.1 The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith; provided however, that nothing contained in this Agreement shall in any way limit the Company's right to file at any time such amendments to the Registration and/or supplements to the Prospectus, of whatever character, as the Company may deem advisable, such right being in all respects absolute and unconditional. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.44.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 4.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 4.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 4.4 On the Effective Date, and thereafter from time to time, the Company will deliver directly to the DistributorDistributor and Selling Agents, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor or Selling Agents may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the DistributorDistributor and Selling Agent, without charge, such number of copies thereof as the Distributor and Selling Agent may reasonably request. The Company acknowledges and agrees that it has the sole responsibility under this Section 4.4 to provide copies of the Prospectus and any printed supplemental material directly to the Selling Agents.
5.5 4.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.
Appears in 1 contract
Samples: Distribution Agreement (Excelsior Corporate Finance Investors LLC)
Agreements of the Company. 5.1 The Company will not, either prior to hereby agrees with the Effective Date or thereafter during such period Initial Purchaser as follows:
(a) To advise the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchaser promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soInitial Purchaser, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC any state securities commission of any stop order suspending the effectiveness qualification or exemption from qualification of any Series A Senior Preferred Stock for offering or sale in any jurisdiction designated by the Registration Statement Initial Purchaser pursuant to Section 5(e) hereof, or the initiation of any proceedings proceeding by any state securities commission or any other federal or state regulatory authority for that such purpose or the threat thereof; and (ivii) of the 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 Offering Memorandum, as then amended or the Prospectus supplemented, untrue or that requires the making of any additions to or changes in the Registration Statement Offering Memorandum, as then amended or the Prospectus supplemented, in order to make the statements therein, in light of the circumstances in under which they are made, not misleading; . The Company shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Series A Senior Preferred Stock under any state securities or Blue Sky laws and, if at any time any state securities commission or other federal or state regulatory authority shall issue an order
(b) To furnish the Initial Purchaser and (v) of receipt those persons identified by the Company or any representative or attorney of the Company of any other communication from the SEC relating Initial Purchaser to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely mannercharge, as many copies of the Prospectus Offering Memorandum, and any printed supplemental material amendments or supplements thereto, as the Distributor Initial Purchaser may reasonably request. If Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchaser in connection with Exempt Resales.
(c) During the period referred to in Section 5(d) below, (i) not to make any amendment or supplement to the Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which the Initial Purchaser shall reasonably object within a reasonable time after being so advised and (ii) to prepare promptly upon the Initial Purchaser's reasonable request, any amendment or supplement to the Offering Memorandum which may be necessary or advisable in connection with Exempt Resales.
(d) If, after the date hereof during such period of time as the Initial Purchaser is required to deliver the Offering Memorandum in connection with Exempt Resales by it, any event shall occur that in as a result of which it becomes necessary to amend or supplement the judgment of the Company or the Distributor should be set forth in the Prospectus Offering Memorandum in order to make any statement the statements therein, in the light of the circumstances under which it was madeas of the date the Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if it is necessary to amend or supplement or amend the Prospectus Offering Memorandum to comply with any applicable law, the Company will forthwith promptly to prepare and duly file with the SEC an appropriate amendment or supplement to such Offering Memorandum so that the statements therein, as so amended or amendment theretosupplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that such Offering Memorandum, as so amended or supplemented, will comply with applicable law, and will deliver to furnish to the Distributor, without charge, Initial Purchaser and such other persons as the Initial Purchaser may designate such number of copies thereof as the Distributor Initial Purchaser may reasonably request.
5.5 At its own expense(e) Prior to the sale of all the Series A Senior Preferred Stock pursuant to Exempt Resales as contemplated hereby, to cooperate with the Company agrees Initial Purchaser and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Initial Purchaser in connection with the registration or qualification of the Units Series A Senior Preferred Stock for offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may reasonably request and to continue such qualification in effect so long as required to consummate such states Exempt Resales and to file such consents to service of process or other documents as Distributor may designate. Concurrent with the effectiveness of the Registration Statementbe necessary in order to effect such registration or qualification; provided, however, that the Company shall provide not be required in connection therewith to
(f) For a period of five (5) years after the Closing Date and thereafter so long as the Initial Purchaser is making a market in the Senior Preferred Stock, to furnish to the Distributor in writing a list Initial Purchaser as soon as available copies of those states all reports or other communications furnished by the Company to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed.
(g) For so long as any of the Series A Senior Preferred Stock remain outstanding and other jurisdictions during any period in which the Units Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available to any holder of Series A Senior Preferred Stock in connection with any sale thereof and any prospective purchaser of such Series A Senior Preferred Stock designated by such holder, upon request, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(h) Whether or not the transactions contemplated in this Agreement are qualified consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to performance of the obligations of the Company under this Agreement, including, without limitation: (i) all fees and expenses in connection with the preparation, printing and distribution of the Offering Memorandum and all amendments and supplements thereto (including financial statements) prior to or during the period specified in Section 5(d), including the mailing and delivering of copies thereof to the Initial Purchaser and persons designated by them as specified herein, (ii) all costs and expenses related to the issuance and delivery of the Series A Senior Preferred Stock to the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (iii) all costs of printing or reproduction of any agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Senior Preferred Stock, (iv) all expenses in connection with the registration or qualification of the Series A Senior Preferred Stock for sale, together with restrictions offer and requirements applicable thereto, sale under the securities or Blue Sky laws of the several states referred to in Section 5(e) hereof and all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the Distributor will sell Units only filing fees and reasonable fees and disbursements of counsel for the Initial Purchaser in such states or jurisdictions and in compliance connection with such restrictions registration or qualification and requirements.memoranda relating thereto), (v) the cost of printing certificates representing the Series A Senior Preferred Stock, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Senior Preferred Stock in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) all costs and charges of any transfer agent, registrar and/or
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the several Underwriters that:
(a) The Company will notuse its best efforts to cause the Company Registration Statement, either prior if not effective at the Execution Time, and any amendment thereof, to become effective. Subject to Section 8(c), if filing of the Company Prospectus is required under Rule 424(b), the Company will cause the Company Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the Effective Date applicable paragraph of Rule 424(b) within the time period prescribed. The Company will promptly advise the Representatives when the Company Registration Statement, if not effective at the Execution Time, shall have become effective. The Company has furnished or thereafter during such period will furnish to the Underwriters as many copies of any preliminary prospectus and the Company Prospectus as the Representatives reasonably request.
(b) During the period when the Company Prospectus is required by law the Act to be delivered in connection with sales of the UnitsDECS, the Company will, subject to Section 8(c), file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act subsequent to the time the Company Registration Statement becomes effective.
(c) During the period when the Company Prospectus is required by the Act to be delivered in connection with sales of the DECS, the Company will inform the Representatives of its intention to file any amendment or to the Company Registration Statement, any supplement to the Company Prospectus or any document that would as a result thereof be incorporated by reference in the Company Prospectus; will furnish the Representatives 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 the Representatives shall reasonably object.
(d) During the period when the Company Prospectus is required by the Act to be delivered in connection with sales of the DECS, the Company will notify the Representatives immediately, and confirm the notice in writing (with respect to clause (i), upon request), (i) of the effectiveness of any amendment to the Company Registration Statement, (ii) of the receipt of any comments from the Commission with respect to the Company Registration Statement or the Company Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (iiiii) of any request by the SEC for amendments or supplements Commission to amend the Company Registration Statement or any supplement to the Company Prospectus or for additional information, information relating thereto and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Company Registration Statement Statement, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation institution or to the Company's knowledge, the threatening of any proceedings for that purpose any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing 18 or suspending such use and, if any such order is issued, to obtain the threat thereof; lifting thereof at the earliest possible moment.
(ive) The Company has furnished or will furnish to the Representatives one copy of the happening originally executed Company Registration Statement (as originally filed) and of any event that in each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and a copy of all originally executed consents and certificates of experts, and has furnished or will furnish to each of the judgment Representatives as many conformed copies of the Company makes Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference into the Company Prospectus but without exhibits) as the Representatives may reasonably request.
(f) The Company will use its reasonable best efforts, in cooperation with the Trust and the Underwriters, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as the Representatives may designate and to maintain such qualifications in effect for a period of not less than one year from the date hereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided.
(g) The Company will make generally available to its security holders as soon as practicable, but not later than 45 days after the close of the period covered thereby (90 calendar days in the case the period corresponds to the fiscal year of the Company), an earnings statement made of the Company (in form complying with the provisions of Rule 158 under the Act), covering a period of 12 months beginning after the effective date of the Registration Statement or and covering a period of 12 months beginning after the Prospectus untrue or that requires the making effective date of any changes post-effective amendment to the Company Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Company will use its reasonable best efforts to comply with the Act and the Exchange Act. If at any time when the Company Prospectus is required by the Act to be delivered in connection with sales of the DECS any event shall occur or condition exist as a result of which it is necessary to amend the Company Registration Statement or amend or supplement the Company Prospectus in order that the Company Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, misleading in the light of the circumstances under which existing at the time it was made, not misleadingis delivered to a purchaser, or if it is shall be necessary at any such time to supplement amend the Company Registration Statement or amend or supplement the Company Prospectus in order to comply with lawthe requirements of the Act, the Company will forthwith promptly prepare and duly file with the SEC an appropriate supplement or amendment theretoCommission, and will deliver subject to the Distributor, without chargeSection 8(d), such number of copies thereof amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Distributor may reasonably requestCompany Registration Statement or the Prospectus comply with such requirements.
5.5 At its own expense(i) For a period of three years after the Closing Date, the Company agrees will furnish or make available to preparethe Representatives copies of all annual reports, executequarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and file furnish such other documents, reports and information as shall be furnished by the Company to its stockholders generally.
(j) The Company will not be or become, at any and all documents and time prior to take all actions the expiration of three years after the Closing Date, an open-end investment trust, unit investment trust or face-amount certificate company that may is or is required to be reasonably necessary in connection with the qualification registered under Section 8 of the Units for sale in such states Investment Company Act of 1940, as Distributor may designate. Concurrent with amended.
(k) The Company will not, without the effectiveness prior written consent of the Registration StatementRepresentatives, offer, sell, contract to sell or otherwise dispose of any Shares (except for (i) shares issuable upon conversion of securities or exercise of warrants and options outstanding as of the date of the Company shall provide Prospectus or pursuant to employee benefit plans and (ii) shares issuable to securityholders of another entity as consideration for the Distributor in writing a list Company's purchase of those states and substantially all the assets of such other jurisdictions entity or the Company's acquisition of or merger with (in which the Units are qualified Company is the surviving entity) such other entity) or warrants, rights or options convertible into or exercisable or exchangeable for sale, together with restrictions and requirements applicable thereto, and Shares (except for the Distributor will sell Units only in such states rights or jurisdictions and in compliance with such restrictions and requirementsoptions pursuant to employee benefits plans existing on the date of the Company Prospectus) at any time for a period of 90 days after the date of the Company Prospectus.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notagrees with the several U.S. ------------------------- Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any amendment or supplement to it is necessary for the Registration Statement or a post-effective amendment thereto or any Rule 462(b) Registration Statement to be declared effective before the Prospectusoffering of the Shares may commence, whether pursuant the Company will endeavor to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4will advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-such post- effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectus or the Prospectus Prospectuses or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are madenecessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, not misleading; the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) six 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, and of any Rule 462(b) Registration Statement and any amendment 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, and of any Rule 462(b) Registration Statement and any amendment thereto, as you may reasonably request, and (viv) of receipt by the Company or any representative or attorney six copies of the Company of any other communication from the SEC relating exhibits to the Company, Incorporated Documents.
(d) The Company will not file any amendment to the Registration Statement, any preliminary prospectusRule 462(b) Registration Statement or amendment thereto, or make any amendment or supplement to the Prospectuses or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the U.S. Prepricing Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply consents to the use, in accordance with all the provisions of any undertakings contained the Act and with the securities or Blue Sky laws of the jurisdictions in which the Registration StatementShares 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.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the U.S. Underwriters a prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to the Distributoreach U.S. Underwriter and each dealer, without charge and in a timely mannercharge, as many copies of the U.S. Prospectus (and of any printed supplemental material amendment or supplement thereto) as the Distributor 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 Distributor should opinion of counsel for the U.S. Underwriters is required to be set forth in the U.S. Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the U.S. Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such U.S. Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Representatives of the Distributor several U.S. Underwriters, 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 proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several U.S. Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering the period specified by
(a) of the Act and Rule 158 thereunder, as soon as reasonably practicable, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(i) During the period of five years hereafter, the Company will furnish to you (i) upon your request, at such address as you may specify, 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.
5.5 At its own expense(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 with the terms or fulfill any of the conditions of this Agreement, the Company agrees to prepare, execute, reimburse the Representatives for all out-of-pocket expenses (including reasonable fees and file any and all documents and to take all actions that may be reasonably necessary expenses of counsel for the U.S. Underwriters) incurred by you in connection with the qualification herewith.
(k) If Rule 430A of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration StatementAct is employed, the Company shall provide 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) Except as provided in this Agreement, the Company will not sell, contract to sell or otherwise dispose of any Common Stock (except shares issued upon exercises of options outstanding under the Company's 1992 stock option plan or upon exercise of outstanding warrants) or any securities convertible into or exercisable or exchangeable for Common Stock, or grant any options (except any options granted under the Company's 1992 stock option plan) or warrants to purchase Common Stock, for a period of 120 days after the date of the U.S. Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.
(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 listed on Schedule III hereto.
(n) Except as stated in this 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.
(o) The Company will use all reasonable efforts to satisfy on or before the Closing Date or any Option Date, as the case may be, all conditions to the Distributor in writing a list of those states and other jurisdictions in which U.S. Underwriters' obligations to purchase the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsShares.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Furniture Brands International Inc)
Agreements of the Company. 5.1 The Company will notcovenants and agrees with the Underwriter as follows:
(a) to file the Prospectus with the Commission within the time periods specified by Rule 424(b) and, either if applicable, Rule 430A under the Securities Act and to furnish copies of the Prospectus to the Underwriter in New York City prior to 10:00 a.m., New York City time, on the Effective Date or thereafter during Business Day next succeeding the date of this Agreement in such period quantities as the Prospectus is required by law Underwriter may reasonably request;
(b) to be delivered in connection with sales deliver, at the expense of the UnitsCompany, file to the Underwriter a conformed copy of the Registration Statement (as originally filed) and each amendment thereto, in each case without exhibits and, during the period mentioned in Section 3(e) below, to the Underwriter as many copies of the Prospectus (including all amendments and supplements thereto) as the Underwriter may reasonably request;
(c) before filing any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to furnish to the 1933 Act, 1940 Act or otherwise, unless Underwriter a copy thereof shall first have been submitted to of the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such proposed amendment or amendments supplement for review and not to file any such proposed amendment or supplement to which the Registration Statement and such supplement or supplements Underwriter reasonably objects;
(d) to advise the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject Underwriter promptly when any amendment to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended filed or supplemented and becomes effective, when any post-effective amendment thereto becomes effective; (ii) supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Underwriter with copies thereof, of any request by the SEC Commission for amendments or supplements any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose order preventing or suspending the threat thereof; (iv) of the happening use of any event that in the judgment of the Company makes any statement made in the Registration Statement preliminary prospectus or the Prospectus untrue or that requires the making initiation or threatening of any changes proceeding for that purpose, of the occurrence of any event, within the period referenced in Section 3(e) below, as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the Registration Statement light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, and of the 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 or the initiation or threatening of any proceeding for such purpose; and to use its best efforts to prevent the issuance of any such stop order, or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of any order suspending any such qualification of the Shares, or notification of any such order thereof and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter a prospectus relating to the Shares is required by law to be delivered in connection with sales by the Underwriter or any dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was madewhen the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement or amend the Prospectus to comply with law, forthwith to prepare and furnish, at the expense of the Company, to the Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which Shares may have been sold by the Underwriter and to any other dealers upon request, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriter shall reasonably request and to continue such qualification in effect so long as reasonably required for distribution of the Shares; provided that the Company will forthwith prepare shall not be required to file a general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and duly file to the Underwriter as soon as practicable an earnings statement covering a period of at least twelve months beginning with the SEC an appropriate supplement first fiscal quarter of the Company 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;
(h) during a period of three years from the effective date of the Registration Statement, to furnish to the Underwriter copies of all reports or amendment theretoother communications (financial or other) furnished to holders of the Shares, and will deliver copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or the Nasdaq National Market (the "Nasdaq"); it being understood and agreed that posting such reports on the Commission's Xxxxx website and/or on the Company's website shall be sufficient;
(i) for a period of 60 days after the date hereof not to (i) offer, pledge, announce the intention to sell, sell, contract to sell any option or contract to purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise without the prior written consent of the Underwriter, other than the Shares to be sold hereunder, any shares of Stock of the Company issued upon the exercise of options granted, grants of additional options under existing employee stock option plans, sales of shares through any dividend reinvestment, stock purchase plan and 401(k) plan of the Company and the issuance of a number of shares of Stock having a fair market value (as defined in the agreement referenced below) of up to $12,300,000 pursuant to that certain Settlement Agreement and Release dated as of February 13, 2003 between parties related to and known as A.P. Green Industries, Inc. and Great American Insurance Company;
(j) to use the net proceeds received by the Company from the sale of the Shares pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds";
(k) not to (and to cause its Subsidiaries not to) take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in stabilization or manipulation of the Shares;
(l) whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all costs and expenses incident to the Distributorperformance of its obligations hereunder, including without charge, such number of copies thereof as limiting the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification generality of the Units for sale in such states as Distributor may designate. Concurrent with foregoing, all costs and expenses incident to the effectiveness issuance, execution and delivery of the Shares, incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Company shall provide Prospectus and any preliminary prospectus (including in each case all exhibits, amendments and supplements thereto), incurred in connection with the registration or qualification of the Shares under the laws of such jurisdictions as the Underwriter may designate (including fees of counsel for the Underwriter not to exceed $7,500 when combined with such fees provided in Section 4(e) below and its disbursements), in connection with the listing of the Shares on the NYSE and Nasdaq and any registration thereof under the Exchange Act, related to any filing with, and clearance of the offering by, the NASD (including fees of counsel for the Underwriter and its disbursements), in connection with the printing (including word processing and duplication costs) and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the furnishing to the Distributor in writing a list Underwriter and dealers of those states and other jurisdictions in which copies of the Units are qualified for sale, together with restrictions and requirements applicable thereto, Registration Statement and the Distributor will sell Units only Prospectus, including mailing and shipping, the cost of preparing stock certificates and the cost and charges of any transfer agent and any registrar;
(m) that it consents to the Underwriter trading in such states or jurisdictions the Company's Common Stock for the Underwriter's own account and for the account of its clients at the same time as sales of Shares occur pursuant to this Agreement as set forth in the Prospectus Supplement and otherwise in compliance with all applicable laws, rules and regulations;
(n) not to 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 of Common Stock to facilitate the sale or resale of any of the Shares; and not to invest in futures contracts, options on futures contracts or options on commodities, unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended (the "Commodity Act"), or otherwise complies with the Commodity Act. The Company will not engage in any activities bearing on the Commodity Act, unless such restrictions activities are exempt from the Commodity Act or otherwise comply with the Commodity Act; and
(o) to file promptly all reports and requirementsany definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares and to advise the Underwriter of any such filing; and to furnish to the Underwriter, at the time of filing thereof, a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (American Financial Group Inc)
Agreements of the Company. 5.1 The Company will not, either prior agrees with you:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or a dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the opinion of the Representatives it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriters and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, in the opinion Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Distributor's counselRepresentatives, it will not make, any offer relating to the Shares that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a written request from Distributor “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to do soany Permitted Free Writing Prospectus, Distributor mayincluding in respect of timely filing with the Commission, at its optionlegending and record keeping. The Company consents to the use by any Underwriter of (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, terminate this Agreement(ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) information describing the preliminary terms of the Shares or their offering.
5.2 The Company will notify the Distributor promptly(e) To advise you promptly and, and will if requested by you, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon your reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Shares by you, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) To furnish to you, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you 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.
(g) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(h) 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 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to 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.
(i) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(j) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the Distributor record holders of its Shares a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor 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 pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states (including in each case the fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) the listing of the Shares with the New York Stock Exchange (the “NYSE”), (v) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (vi) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (vii) the preparation, issuance, execution and delivery of the Shares and (viii) the fees and expenses of any transfer agent or registrar in connection with the Shares.
(l) To apply the net proceeds from the sale of the Shares in the manner described under the caption “Use of Proceeds” in the Prospectus.
(m) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Shares.
(n) For the period ending 75 days after the date of the Prospectus, the Company will not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell Units only any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) 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 states transaction described in clause (i) or jurisdictions (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Representatives, other than (v) the Shares to be sold hereunder, (w) the issuance of shares of Common Stock upon the exercise of an option or warrant or conversion of a security outstanding on the date of this Agreement, (x) grants and issuances of shares of Common Stock, options to acquire Common Stock or other derivative securities pursuant to stock-based compensation or incentive plans of the Company, (y) the issuance of shares of Common Stock pursuant to the Company’s dividend reinvestment plans or employee stock purchase plans, and (z) the issuance, offer or sale of a Tier 1 instrument; except that, notwithstanding the foregoing, the Company may fulfill its obligations under Article III (Registration Rights) of the Shareholders Agreement, dated as of February 17, 2012, by and between Capital One Financial Corporation and ING Groep N.V. during such period.
(o) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with any stabilization or manipulation of the price of the Shares.
(p) To use its best efforts to list, subject to notice of issuance, the Shares on the NYSE and to maintain such restrictions and requirementslisting.
(q) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company agrees with the Agents that: -------------------------
(a) Prior to the termination of the offering of the Notes pursuant to this Agreement, the Company will not file any amendment to the Registration Statement, any supplement to the Prospectus which would create a Note Prospectus or any supplement to the Note Prospectus unless the Company has previously furnished the Agents a copy thereof for their review and will not file any such proposed amendment or supplement to which any of the Agents reasonably objects. Subject to the foregoing sentence, the Company will promptly cause the Prospectus together with each supplement thereto which would create a Note Prospectus, and each Note Prospectus together with each supplement thereto, to be transmitted to the Commission for filing electronically by the appropriate date, or will promptly cause each supplement to the Prospectus or the Note Prospectus, as the case may be, to be filed with the Commission pursuant to said Rule. The Company will not, either prior to promptly advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales Agents (i) of the Units, file filing of any amendment or supplement to the Registration Statement or the Prospectus which creates a Note Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to including the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus asof documents incorporated therein by reference, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of the filing of any amendment or supplement to the Note Prospectus, including the filing of documents incorporated therein by reference, (iii) of the filing or effectiveness of any amendment to the Registration Statement, (iv) of any comments from the Commission relating to or any request by the SEC Commission for amendments any amendment of the Registration Statement, any amendment of or supplements supplement to the Registration Statement Prospectus which would create a Note Prospectus, or any amendment of or supplement to the Prospectus Note Prospectus, or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; and (ivvi) of the happening receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event that occurs as a result of which, in the judgment reasonable opinion of counsel for the Company makes Agents or counsel for the Company, the Registration Statement or the Note Prospectus, as then amended or supplemented, would not reflect any statement made facts or events which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement or the Prospectus Note Prospectus, as then amended or supplemented, and/or would include an untrue statement of a material fact, or that requires the making of omit to state any changes in the Registration Statement or the Prospectus in order material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if if, in the reasonable opinion of either such counsel, it is necessary at any time to amend or supplement the Registration Statement or amend the Prospectus Note Prospectus, as then amended or supplemented, to comply with lawthe Act, the Company promptly will notify the Agents and, if so notified by the Company, the Agents shall forthwith suspend solicitation of offers to purchase Notes and cease using the Note Prospectus, as then amended or supplemented; the Company will promptly prepare and duly file with the SEC Commission, subject to the first sentence of Section 4(a) above, an appropriate amendment or supplement to such Registration Statement or Note Prospectus which will include such facts or events and/or will correct such statement or omission or will effect such compliance and will supply such amended or supplemented Note Prospectus to the Agents in such quantities as the Agents may reasonably request. If such amendment theretoor supplement, and will deliver any documents, certificates and opinions furnished to the DistributorAgents pursuant to Section 4(f) below in connection with the preparation or filing of such amendment or supplement, are satisfactory in all respects to the Agents, the Agents will, upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement, resume their obligations to solicit offers to purchase Notes hereunder.
(c) The Company will make generally available to its security holders as soon as practicable, but not later than 15 months after the end of a fiscal quarter of the Company during which any Notes are sold through or purchased by the Agents, an earnings statement of the Company (which need not be audited) covering a 12-month period within such 15 months, which earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission issued thereunder (including Rule 158 under the Act).
(d) The Company will furnish to each Agent and counsel for the Agents, without charge, copies of the Registration Statement, the Note Prospectus and all amendments of and supplements to such number documents (including exhibits thereto and documents incorporated by reference therein), in each case as soon as available and in such quantities as such Agent reasonably requests and for so long as delivery of copies thereof a prospectus by such Agent may be required under the Act, that the Company will also furnish to each Agent and counsel for the Agents one manually signed copy of the Registration Statement and all amendments thereto (including in each case all Exhibits thereto) as soon as available.
(e) The Company will use its best efforts to qualify the Notes for sale under the securities laws of such jurisdictions as the Distributor Agents may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Notes pursuant to this Agreement (except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any State) and will arrange for the determination of the eligibility for investment of the Notes under the laws of such jurisdictions as the Agents may reasonably request.
5.5 At its own expense(f) The Company shall furnish to each Agent such documents, certificates of officers of the Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement and the Note Prospectus, any amendments or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company agrees and such Agent of their respective obligations hereunder and thereunder as such Agent may from time to preparetime prior to the termination of this Agreement reasonably request.
(g) The Company, executewhether or not any Notes are sold through or purchased by the Agents and whether or not this Agreement is terminated, shall pay all expenses incident to the performance of its obligations under this Agreement, including, without limitation, the fees and disbursements of its accountants; the cost of printing and delivery of the Registration Statement and the Note Prospectus, all amendments and supplements thereto, the Indenture, and file any all other documents relating to the offering; the cost of preparing, printing, packaging and all documents delivering the Notes; the fees and to take all actions that may be reasonably necessary disbursements (including fees of counsel) incurred in connection with the qualification of the Units Notes for sale and determination of eligibility for investment of the Notes under the securities or Blue Sky laws of such jurisdictions as the Agents may designate; any filing fees of the National Association of Securities Dealers, Inc. relating to the Notes; the fees and disbursements of the Trustee, the fees of any agency that rates the Notes; and the fees and expenses in connection with any listing of the Notes on any stock exchange or market.
(h) The Company shall reimburse each Agent for any out-of-pocket expenses (including, without limitation, advertising expenses approved by the Company in its discretion and the reasonable fees and disbursements of counsel to the Agents) incurred heretofore or hereafter by such Agent in connection with the offering, purchase and sale of the Notes. Any such out-of-pocket expenses shall be payable upon the receipt by the Company from such Agent of any itemized statement therefor.
(i) Each time the Registration Statement or the Note Prospectus is amended (which term for the purposes of this Section 4 shall include the filing by the Company of materials incorporated by reference in the Registration Statement or the Note Prospectus) or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates on the Notes or for a change deemed immaterial in the reasonable opinion of the Agents), or the Prospectus is supplemented to create a Note Prospectus, the Company will, at the request of any Agent in such states as Distributor may designate. Concurrent with Agent's sole discretion, deliver or cause to be delivered forthwith to each Agent a certificate of the Company signed by the Chairman of the Board, the President or any Vice President and by the principal financial or accounting officer of the Company, dated the date of the effectiveness of such amendment or the date of filing of such amendment or supplement, as the case may be, in form reasonably satisfactory to the Agents, to the effect that the statements contained in the certificate referred to in Section 5(A)(d) that was last furnished to the Agents (either pursuant to Section 5(A)(d) or pursuant to this Section 4(i)) are true and correct at the time of the effectiveness of such amendment (which for the purposes of this Agreement in the case of the filing of materials incorporated by reference shall be the date of the filing of such materials) or the date of filing of such supplement, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration StatementStatement as amended at the time of effectiveness of such amendment, and to the Prospectus or the Note Prospectus (as the case may be) as amended and supplemented at the date of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(A)(d) but modified, if necessary, to relate to the Registration Statement as amended at the time of the effectiveness of such amendment, and to the Prospectus or the Note Prospectus (as the case may be) as amended and supplemented at the date of such certificate.
(j) Each time the Registration Statement or the Note Prospectus is amended or supplemented, including by the filing by the Company of materials incorporated by reference, or the Prospectus is supplemented to create a Note Prospectus, the Company shall, at the request of any Agent in such Agent's sole discretion, furnish to or cause to be furnished forthwith to each Agent a written opinion of the General Counsel, any Deputy General Counsel of the Company, or other United States counsel to the Company reasonably satisfactory to the Agents, to the effect set forth in Exhibit C hereto; provided, however, that such opinion need not be furnished with respect to an amendment or supplement (i) providing solely for a change in the interest rates on the Notes or for a change deemed immaterial in the reasonable opinion of the Agents, or (ii) setting forth or incorporating by reference financial statements or other information as of and for a fiscal quarter, unless in the reasonable judgment of the Agents, such financial statements or other information are of such a nature that an opinion of counsel should be furnished. Any such opinion shall be dated the date of the effectiveness of such amendment or the date of filing of such supplement, as the case may be, in form satisfactory to the Agents. In lieu of such opinion, such counsel may furnish to each Agent a letter to the effect that the Agents may rely on such counsel's last opinion to the same extent as though it were dated the date of such letter authorizing reliance on such last opinion (except that statements in such last opinion will be deemed to relate to the Registration Statement as amended at the time of the effectiveness of such amendment, and to the Prospectus or the Note Prospectus (as the case may be) as amended and supplemented at the date of such letter).
(k) Each time that the Registration Statement or the Note Prospectus is amended or supplemented to set forth amended or supplemental financial information, the Company shall, at the request of any Agent in such Agent's sole discretion, cause Xxxxxx Xxxxxxxx LLP, its independent public accountants, forthwith to furnish the Agents a letter, dated the date of the effectiveness of such amendment or the date of filing of such supplement, as the case may be, in form satisfactory to the Agents, of the same tenor as the letter referred to in Section 5(A)(e) and clause (1) of Exhibit D hereto but modified to relate to the Registration Statement and the Note Prospectus, as amended and supplemented to the date of such letter, and of the same tenor as the portions of the letter referred to in clauses (2) and (3) of Exhibit D hereto with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company; provided, that if the Registration Statement or the Note Prospectus is amended or supplemented solely to include or incorporate by reference financial information with respect to a fiscal quarter, Xxxxxx Xxxxxxxx LLP may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement unless any other information included or incorporated by reference therein of an accounting, financial or statistical nature is of such a nature that, in the reasonable judgment of the Agents, such letter should cover such other information.
(l) Each acceptance by the Company of an offer for the purchase of Notes shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement to the Agents pursuant hereto are true and correct at the time of such acceptance, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or his agent, or the applicable Agent, of the Notes relating to such acceptance as though made at and as of each such time (and it is understood that such representations and warranties shall relate to the Registration Statement and the Note Prospectus as amended and supplemented to each such time).
(m) Unless otherwise specified in a Terms Agreement, during the period, commencing on the date of the Terms Agreement and ending on the settlement date with respect thereto, the Company shall provide not, without the prior consent of the Agent who is a party to such Terms Agreement, issue or announce the proposed issuance of any of its debt securities, including Notes, with terms substantially similar to those of the Notes being purchased pursuant to the Distributor Terms Agreement.
(n) The Company will deliver to the Agents at their respective addresses specified in writing a list Section 9 below, so long as this Agreement shall remain in effect, copies of those states any published reports of the Company to its securities holders, including, without limitation, any annual reports and quarterly reports of the Company and any other jurisdictions in which financial reports made generally available to its securities holders, at the Units same time as such reports are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states published or jurisdictions and in compliance with such restrictions and requirementsmade available to securities holders.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notagrees with the several Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any amendment or supplement to it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the Prospectusoffering of the Shares may commence, whether pursuant the Company will endeavor to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to cause the Registration Statement or such post-effective amendment to become effective as soon as reasonably practicable and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4will advise you promptly after it receives notice thereof and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any such post-effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly after it receives notice thereof and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectus or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company Act or any representative or attorney other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes Company will make every reasonable effort to obtain the withdrawal of this section, informal requests by or acts of such order at the SEC staff shall not be deemed actions of or requests by the SECearliest possible time.
5.3 (c) The Company will comply furnish to you, without charge (i) six 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) four 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 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 any undertakings contained the Act and with the securities or Blue Sky laws of the jurisdictions in which the Registration StatementShares 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.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime 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 the Distributoreach Underwriter and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any printed supplemental material 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 Distributor may reasonably requestProspectus 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 Distributor should opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Representatives of the Distributor 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 disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company Rule 158).
(i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request.
5.5 At its own expense(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 prepare, execute, reimburse the Representatives for all out-of-pocket expenses (including fees and file any and all documents and to take all actions that may be reasonably necessary 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 qualification description set forth in the Prospectus.
(l) If Rule 430A of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration StatementAct is employed, the Company shall provide will timely file the Prospectus pursuant to Rule 424(b) under the Distributor Act and will advise you of the time and manner of such filing.
(m) Except as provided in writing 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 list period of those states 120 days after the date of the Prospectus, without the prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, other than shares and other jurisdictions options issued pursuant to Company employee and director plans and Company dividend and interest reinvestment and stock purchase plans.
(n) Except as stated in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions this Agreement and in compliance with such restrictions the Prepricing Prospectus and requirementsProspectus, 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 cause the shares of Common Stock which it agrees to sell under this Agreement to be listed, subject only to official notice of issuance, on the New York, Pacific and Toronto Stock Exchanges on or before the Closing Date.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the Agents that:
(a) Prior to the termination of the offering of the Notes pursuant to this Agreement, the Company will not file any amendment to the Registration Statement, any supplement to the Prospectus which would create a Note Prospectus or any supplement to the Note Prospectus unless the Company has previously furnished the Agents a copy thereof for their review and will not file any such proposed amendment or supplement to which any of the Agents reasonably objects. Subject to the foregoing sentence, the Company will promptly cause the Prospectus together with each supplement thereto which would create a Note Prospectus, and each Note Prospectus together with each supplement thereto, to be transmitted to the Commission for filing electronically by the appropriate date, or will promptly cause each supplement to the Prospectus or the Note Prospectus, as the case may be, to be filed with the Commission pursuant to said Rule. The Company will not, either prior to promptly advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales Agents (i) of the Units, file filing of any amendment or supplement to the Registration Statement or the Prospectus which creates a Note Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to including the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus asof documents incorporated therein by reference, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of the filing of any amendment or supplement to the Note Prospectus, including the filing of documents incorporated therein by reference, (iii) of the filing or effectiveness of any amendment to the Registration Statement, (iv) of any comments from the Commission relating to or any request by the SEC Commission for amendments any amendment of the Registration Statement, any amendment of or supplements supplement to the Registration Statement Prospectus which would create a Note Prospectus, or any amendment of or supplement to the Prospectus Note Prospectus, or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; and (ivvi) of the happening receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event that occurs as a result of which, in the judgment reasonable opinion of counsel for the Company makes Agents or counsel for the Company, the Registration Statement or the Note Prospectus, as then amended or supplemented, would not reflect any statement made facts or events which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement or the Prospectus Note Prospectus, as then amended or supplemented, and/or would include an untrue statement of a material fact, or that requires the making of omit to state any changes in the Registration Statement or the Prospectus in order material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if if, in the reasonable opinion of either such counsel, it is necessary at any time to amend or supplement the Registration Statement or amend the Prospectus Note Prospectus, as then amended or supplemented, to comply with lawthe Act, the Company promptly will notify the Agents and, if so notified by the Company, the Agents shall forthwith suspend solicitation of offers to purchase Notes and cease using the Note Prospectus, as then amended or supplemented; the Company will promptly prepare and duly file with the SEC Commission, subject to the first sentence of Section 4(a) above, an appropriate amendment or supplement to such Registration Statement or Note Prospectus which will include such facts or events and/or will correct such statement or omission or will effect such compliance and will supply such amended or supplemented Note Prospectus to the Agents in such quantities as the Agents may reasonably request. If such amendment theretoor supplement, and will deliver any documents, certificates and opinions furnished to the DistributorAgents pursuant to Section 4(f) below in connection with the preparation or filing of such amendment or supplement, are satisfactory in all respects to the Agents, the Agents will, upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement, resume their obligations to solicit offers to purchase Notes hereunder.
(c) The Company will make generally available to its security holders as soon as practicable, but not later than 15 months after the end of a fiscal quarter of the Company during which any Notes are sold through or purchased by the Agents, an earnings statement of the Company (which need not be audited) covering a 12-month period within such 15 months, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act and the rules and regulations of the Commission issued thereunder (including Rule 158 under the Act).
(d) The Company will furnish to each Agent and counsel for the Agents, without charge, copies of the Registration Statement, the Note Prospectus and all amendments of and supplements to such number documents (including exhibits thereto and documents incorporated by reference therein), in each case as soon as available and in such quantities as such Agent reasonably requests and for so long as delivery of copies thereof a prospectus by such Agent may be required under the Act, that the Company will also furnish to each Agent and counsel for the Agents one manually signed copy of the Registration Statement and all amendments thereto (including in each case all Exhibits thereto) as soon as available.
(e) The Company will use its best efforts to qualify the Notes for sale under the securities laws of such jurisdictions as the Distributor Agents may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Notes pursuant to this Agreement (except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any State) and will arrange for the determination of the eligibility for investment of the Notes under the laws of such jurisdictions as the Agents may reasonably request.
5.5 At its own expense(f) The Company shall furnish to each Agent such documents, certificates of officers of the Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement and the Note Prospectus, any amendments or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company agrees and such Agent of their respective obligations hereunder and thereunder as such Agent may from time to preparetime prior to the termination of this Agreement reasonably request.
(g) The Company, executewhether or not any Notes are sold through or purchased by the Agents and whether or not this Agreement is terminated, shall pay all expenses incident to the performance of its obligations under this Agreement, including, without limitation, the fees and disbursements of its accountants; the cost of printing and delivery of the Registration Statement and the Note Prospectus, all amendments and supplements thereto, the Indenture, and file any all other documents relating to the offering; the cost of preparing, printing, packaging and all documents delivering the Notes; the fees and to take all actions that may be reasonably necessary disbursements (including fees of counsel) incurred in connection with the qualification of the Units Notes for sale and determination of eligibility for investment of the Notes under the securities or Blue Sky laws of such jurisdictions as the Agents may designate; any filing fees of the National Association of Securities Dealers, Inc. relating to the Notes; the fees and disbursements of the Trustee, the fees of any agency that rates the Notes; and the fees and expenses in connection with any listing of the Notes on any stock exchange or market.
(h) The Company shall reimburse each Agent for any out-of-pocket expenses (including, without limitation, advertising expenses approved by the Company in its discretion and the reasonable fees and disbursements of counsel to the Agents) incurred heretofore or hereafter by such Agent in connection with the offering, purchase and sale of the Notes. Any such out-of-pocket expenses shall be payable upon the receipt by the Company from such Agent of any itemized statement therefor.
(i) Each time the Registration Statement or the Note Prospectus is amended (which term for the purposes of this Section 4 shall include the filing by the Company of materials incorporated by reference in the Registration Statement or the Note Prospectus) or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates on the Notes or for a change deemed immaterial in the reasonable opinion of the Agents), or the Prospectus is supplemented to create a Note Prospectus, the Company will, at the request of any Agent in such states as Distributor may designate. Concurrent with Agent's sole discretion, deliver or cause to be delivered forthwith to each Agent a certificate of the Company signed by the Chairman of the Board, the President or any Vice President and by the principal financial or accounting officer of the Company, dated the date of the effectiveness of such amendment or the date of filing of such amendment or supplement, as the case may be, in form reasonably satisfactory to the Agents, to the effect that the statements contained in the certificate referred to in Section 5(A)(d) that was last furnished to the Agents (either pursuant to Section 5(A)(d) or pursuant to this Section 4(i)) are true and correct at the time of the effectiveness of such amendment (which for the purposes of this Agreement in the case of the filing of materials incorporated by reference shall be the date of the filing of such materials) or the date of filing of such supplement, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration StatementStatement as amended at the time of effectiveness of such amendment, and to the Prospectus or the Note Prospectus (as the case may be) as amended and supplemented at the date of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(A)(d) but modified, if necessary, to relate to the Registration Statement as amended at the time of the effectiveness of such amendment, and to the Prospectus or the Note Prospectus (as the case may be) as amended and supplemented at the date of such certificate.
(j) Each time the Registration Statement or the Note Prospectus is amended or supplemented, including by the filing by the Company of materials incorporated by reference, or the Prospectus is supplemented to create a Note Prospectus, the Company shall, at the request of any Agent in such Agent's sole discretion, furnish to or cause to be furnished forthwith to each Agent a written opinion of the General Counsel, any Group General Counsel or any Associate General Counsel of the Company, or other United States counsel to the Company reasonably satisfactory to the Agents, to the effect set forth in Exhibit C hereto; provided, however, that such opinion need not be furnished with respect to an amendment or supplement (i) providing solely for a change in the interest rates on the Notes or for a change deemed immaterial in the reasonable opinion of the Agents, or (ii) setting forth or incorporating by reference financial statements or other information as of and for a fiscal quarter, unless in the reasonable judgment of the Agents, such financial statements or other information are of such a nature that an opinion of counsel should be furnished. Any such opinion shall be dated the date of the effectiveness of such amendment or the date of filing of such supplement, as the case may be, in form satisfactory to the Agents. In lieu of such opinion, such counsel may furnish to each Agent a letter to the effect that the Agents may rely on such counsel's last opinion to the same extent as though it were dated the date of such letter authorizing reliance on such last opinion (except that statements in such last opinion will be deemed to relate to the Registration Statement as amended at the time of the effectiveness of such amendment, and to the Prospectus or the Note Prospectus (as the case may be) as amended and supplemented at the date of such letter).
(k) Each time that the Registration Statement or the Note Prospectus is amended or supplemented to set forth amended or supplemental financial information, the Company shall, at the request of any Agent in such Agent's sole discretion, cause Xxxxxx Xxxxxxxx LLP, its independent public accountants, forthwith to furnish the Agents a letter, dated the date of the effectiveness of such amendment or the date of filing of such supplement, as the case may be, in form satisfactory to the Agents, of the same tenor as the letter referred to in Section 5(A)(e) and clause (1) of Exhibit D hereto but modified to relate to the Registration Statement and the Note Prospectus, as amended and supplemented to the date of such letter, and of the same tenor as the portions of the letter referred to in clauses (2) and (3) of Exhibit D hereto with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company; provided, that if the Registration Statement or the Note Prospectus is amended or supplemented solely to include or incorporate by reference financial information with respect to a fiscal quarter, Xxxxxx Xxxxxxxx LLP may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement unless any other information included or incorporated by reference therein of an accounting, financial or statistical nature is of such a nature that, in the reasonable judgment of the Agents, such letter should cover such other information.
(l) Each acceptance by the Company of an offer for the purchase of Notes shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement to the Agents pursuant hereto are true and correct at the time of such acceptance, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or his agent, or the applicable Agent, of the Notes relating to such acceptance as though made at and as of each such time (and it is understood that such representations and warranties shall relate to the Registration Statement and the Note Prospectus as amended and supplemented to each such time).
(m) Unless otherwise specified in a Terms Agreement, during the period, commencing on the date of the Terms Agreement and ending on the settlement date with respect thereto, the Company shall provide not, without the prior consent of the Agent who is a party to such Terms Agreement, issue or announce the proposed issuance of any of its debt securities, including Notes, with terms substantially similar to those of the Notes being purchased pursuant to the Distributor Terms Agreement.
(n) The Company will deliver to the Agents at their respective addresses specified in writing a list Section 9 below, so long as this Agreement shall remain in effect, copies of those states any published reports of the Company to its securities holders, including, without limitation, any annual reports and quarterly reports of the Company and any other jurisdictions in which financial reports made generally available to its securities holders, at the Units same time as such reports are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states published or jurisdictions and in compliance with such restrictions and requirementsmade available to securities holders.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will not, either prior agrees with you:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file or make or use any such proposed amendment or supplement to which the Representatives reasonably object.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstance under which they were made, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if in the opinion of the Representatives it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement to be declared effective) and furnish at its own expense to the 1933 ActUnderwriters and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet containing only a description of the Securities, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule II, or (iii) (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon your reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by you, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to you, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you 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.
(h) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(i) Prior to any public offering of the Securities, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the 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 Securities 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(k) If at any time during such period the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, 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 Distributor record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor will 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.
(l) During the period referred to in paragraph (k), to furnish to you as soon as available a copy of each report or proxy statement of the Company mailed to the security holders of the Company or filed with the Commission and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(m) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the National Association of Securities Dealers, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (vi) the rating agencies in connection with the rating of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee.
(n) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell Units only 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) the Securities and (ii) commercial paper issued in such states the ordinary course of business), without your prior written consent.
(o) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(p) To use its best efforts to do and perform all things required or jurisdictions necessary to be done and in compliance with such restrictions performed under this Agreement by the Company prior to the Closing Date and requirementsto satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company will notagrees with each Underwriter as follows:
(a) To furnish the Manager, either prior without charge, one signed copy of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, the Incorporated Documents and any supplements and amendments thereto or to the Effective Date Registration Statement as the Manager may reasonably request.
(b) Before amending or thereafter supplementing the Registration Statement or the Prospectus with respect to the Offered Securities, to furnish to the Manager a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the first date of the public offering of the Offered Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of the Units, file any amendment which it is necessary to amend or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are madewhen the Prospectus is delivered to a purchaser, not misleading; , or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (v) of receipt by whose names and addresses the Company or any representative or attorney of the Company of any other communication from the SEC relating Manager will furnish to the Company, ) to which Offered Securities may have been sold by the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts Manager on behalf of the SEC staff shall not be deemed actions of Underwriters and to any other dealers upon request, either amendments or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver supplements to the Distributor, without charge and in a timely manner, as many copies of Prospectus so that the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth statements in the Prospectus in order to make any statement thereinas so amended or supplemented will not, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law, .
(d) To endeavor to qualify the Company will forthwith prepare Offered Securities for offer and duly file with sale under the SEC an appropriate supplement securities or amendment thereto, and will deliver to the Distributor, without charge, Blue Sky laws of such number of copies thereof jurisdictions as the Distributor may Manager shall reasonably request and to maintain such qualification for as long as the Manager shall reasonably request.
5.5 At its own expense(e) To mail and make generally available to the Company's security holders and to the Manager as soon as practicable an earning statement covering a twelve month period beginning on the first day of the first full fiscal quarter after the date of this Agreement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company agrees substantially similar to preparethe Offered Securities, execute(other than (i) the Offered Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Manager.
(g) To pay all costs, expenses, fees and file any taxes incident to the performance of its obligations under this Agreement, including: (i) the preparation, printing and filing of the Registration Statement and the Prospectus and all documents amendments and to take all actions that may be reasonably necessary supplements thereto; (ii) the preparation, issuance and delivery of the Offered Securities; (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel; (iv) the qualification of the Offered Securities under state securities or Blue Sky laws in accordance with the provisions of Section 6(d), including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the qualification preparation of any Blue Sky or Legal Investment Memoranda; (v) the Units for sale printing and delivery to the Underwriters in such states quantities as Distributor may designate. Concurrent with the effectiveness hereinabove stated of copies of the Registration StatementStatement and all amendments thereto and of any preliminary prospectus and the Prospectus and any amendments or supplements thereto; (vi) the printing and delivery to the Underwriters of copies of any Blue Sky or Legal Investment Memoranda; (vii) any fees charged by rating agencies for the rating, if any, of the Offered Securities; (viii) the filing fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc. made in connection with the Offered Securities; and (ix) any expenses incurred by the Company shall provide in connection with a "road show" presentation to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementspotential investors.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with each Underwriter as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsOffered ADSs by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriters, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECUnderwriters, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to the Distributoreach Underwriter, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Offered ADSs may reasonably requestbe sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Distributoreach Underwriter, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor each Underwriter may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify the Representative and, if requested by the Representative, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company agrees will cooperate with the Underwriters and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriters may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants).
(h) The Company will make generally available to holders of its securities as soon as may designate. Concurrent be practicable an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriters or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NYSE, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company, the Accountants and the Depositary (including any costs and expenses necessary in connection with closing and settlement), (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including communication and electronic marketing expenses incurred by the Underwriters on behalf of the Company, such as NetRoadshow and any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriters), and (xi) all other costs and expenses of the Underwriters incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriters (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Company be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $75,000 in the aggregate; provided, that expenses incurred by the Underwriters on behalf of the Company in connection with clause (x) above shall not be included in the Expense Cap.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and sale of the Offered ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of the Representative, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company, including Ordinary Shares and ADSs, or any other securities convertible into or exchangeable for its Ordinary Shares, ADSs or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement or pursuant to a strategic partnership with a customer) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any equity securities of the Company, including Ordinary Shares and ADSs, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares, ADSs or other securities, in cash or otherwise.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of the Representative, grant options to purchase Ordinary Shares or ADSs at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Representative, other than registration statements on Form S-8.
(n) The Company will cause each of its executive officers , directors and certain stockholders designated by the Representative to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of the Representative, sell, contract to sell or otherwise dispose of any ADSs or Ordinary Shares or rights to acquire such shares according to the terms set forth in Schedule IV hereto.
(o) Prior to the termination of the Option, the Company shall provide not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Distributor in writing a list Company or any Subsidiary, the financial condition, results of those states and other jurisdictions in which operations, business, properties, assets, or liabilities of the Units are qualified for saleCompany or any Subsidiary, together with restrictions and requirements applicable theretoor the offering of the Offered ADSs, without prior notice to the Representative.
(p) The Company will use its best efforts to cause the Offered ADSs and the Distributor will sell Units only in Underlying Shares to be listed on the NYSE and to maintain such states or jurisdictions and in compliance with such restrictions and requirementslisting on the NYSE.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the Underwriter as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsOffered ADSs by the Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Underwriter within a reasonable period of time prior to the filing thereof and the Distributor Underwriter shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Underwriter promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Underwriter promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriter, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECUnderwriter, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to the DistributorUnderwriter, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriter and by all dealers to whom the Offered ADSs may reasonably requestbe sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriter should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the DistributorUnderwriter, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Underwriter may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriter, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Underwriter after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and, if requested by the Underwriter, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company agrees will cooperate with the Underwriter and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriter in connection with the registration or qualification of the Units Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriter may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants).
(h) The Company will make generally available to holders of its securities as soon as may designate. Concurrent be practicable an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriter all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriter or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NYSE, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriter in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriter in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriter), and (xi) all other costs and expenses of the Underwriter incident to the performance of its obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriter (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Company be required to pay or reimburse if paid by the Underwriter any costs and expenses in excess of $125,000 in the aggregate.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and sale of the Offered ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of the Underwriter, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company, including Ordinary Shares and ADSs, or any other securities convertible into or exchangeable for its Ordinary Shares, ADSs or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any equity securities of the Company, including Ordinary Shares and ADSs, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares, ADSs or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Underwriter waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of the Underwriter, grant options to purchase Ordinary Shares or ADSs at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Underwriter, other than registration statements on Form S-8.
(n) The Company will cause each of its executive officers and directors to enter into lock-up agreements with the Underwriter to the effect that they will not, without the prior written consent of the Underwriter, sell, contract to sell or otherwise dispose of any ADSs or Ordinary Shares or rights to acquire such shares according to the terms set forth in Schedule III hereto.
(o) Prior to the termination of the Option, the Company shall provide not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Distributor in writing a list Company or any Subsidiary, the financial condition, results of those states and other jurisdictions in which operations, business, properties, assets, or liabilities of the Units are qualified for saleCompany or any Subsidiary, together with restrictions and requirements applicable theretoor the offering of the Offered ADSs, without prior notice to the Underwriter.
(p) The Company will use its best efforts to cause the Offered ADSs and the Distributor will sell Units only in Underlying Shares to be listed on the NYSE and to maintain such states or jurisdictions and in compliance with such restrictions and requirementslisting on the NYSE.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the Underwriter as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsOffered ADSs by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Underwriter within a reasonable period of time prior to the filing thereof and the Distributor Underwriter shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Underwriter promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Underwriter promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriter, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECUnderwriter, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to the DistributorUnderwriter, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriter and by all dealers to whom the Offered ADSs may reasonably requestbe sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriter should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the DistributorUnderwriter, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Underwriter may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriter, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Underwriter after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and, if requested by the Underwriter, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company agrees will cooperate with the Underwriter and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriter in connection with the registration or qualification of the Units Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriter may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor required under the Rules and Regulations, furnish to its securityholders 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).
(h) The Company will make generally available to holders of its securities as soon as may designate. Concurrent be practicable an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company, will pay or reimburse if paid by the Underwriter all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriter or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NYSE, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriter in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriter in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company, the Accountants and the Depositary (including any costs and expenses necessary in connection with closing and settlement), (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including communication and electronic marketing expenses incurred by the Underwriter on behalf of the Company, such as NetRoadshow and any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriter), and (xi) all other costs and expenses of the Underwriter incident to the performance of their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriter (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event shall the Company be required to pay or reimburse if paid by the Underwriter any costs and expenses in excess of $50,000 in the aggregate (“Expense Cap”); provided, that expenses incurred by the Underwriter on behalf of the Company in connection with clause (x) above shall not be included in the Expense Cap and shall be paid by the Company. The Company will pay or reimburse if paid by the Selling Securityholder the fees and expenses of the Selling Securityholder’s counsel, up to $20,000 in the aggregate, but will not be responsible for (i) the underwriting discounts and commissions, incentive or advisory fees payable to the Underwriter in connection with the sale of the Firm ADSs, or (ii) any transfer taxes associated with the Firm ADSs.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and sale of the Option ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) Prior to the termination of the Option, the Company shall provide not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Distributor in writing a list Company or any Subsidiary, the financial condition, results of those states and other jurisdictions in which operations, business, properties, assets, or liabilities of the Units are qualified for saleCompany or any Subsidiary, together with restrictions and requirements applicable theretoor the offering of the Offered ADSs, without prior notice to the Underwriter.
(m) The Company will use its best efforts to cause the Offered ADSs and the Distributor will sell Units only in Underlying Shares to be listed on the NYSE and to maintain such states or jurisdictions and in compliance with such restrictions and requirementslisting on the NYSE.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notcovenants and agrees with each of the several Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to become effective at the earliest possible time and, either if required, to file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A under the Securities Act and to furnish copies of the Prospectus to the Underwriters in New York City prior to 10:00 a.m., New York City time, on the Effective Date or thereafter during Business Day next succeeding the date of this Agreement in such period quantities as the Prospectus is required by law Underwriters may reasonably request;
(b) to be delivered in connection with sales deliver, at the expense of the UnitsCompany, file to the Underwriters a signed copy of the final amendment to the Registration Statement in the form as declared effective by the Commission, including exhibits and to each other Underwriter a conformed copy of the Registration Statement (as originally filed) and each amendment thereto, in each case without exhibits and, during the period mentioned in Section 3(e) below, to each of the Underwriters as many copies of the Prospectus (including all amendments and supplements thereto) as the Underwriters may reasonably request;
(c) before filing any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to before or after the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements becomes effective, to furnish to the Prospectus as, in the light of future developments, may, in the opinion Underwriters a copy of the Distributor's counsel, be necessary proposed amendment or advisable. Subject supplement for review and not to Section 5.4, if file any such proposed amendment or supplement to which the Company does not so amend Underwriters reasonably object;
(d) to advise the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) Underwriters promptly when the Registration Statement has been amended or supplemented and become effective, when any post-effective amendment thereto to the Registration Statement has been filed or becomes effective; (ii) , when any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Underwriters with copies thereof, of any request by the SEC Commission for amendments or supplements any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose order preventing or suspending the threat thereof; (iv) of the happening use of any event that in the judgment of the Company makes any statement made in the Registration Statement preliminary prospectus or the Prospectus untrue or that requires the making initiation or threatening of any changes proceeding for that purpose, of the occurrence of any event, within the period referenced in Section 3(e) below, as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the Registration Statement light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, and of the 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 or the initiation or threatening of any proceeding for such purpose; and to use its best efforts to prevent the issuance of any such stop order, or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of any order suspending any such qualification of the shares, or notification of any such order thereof and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is required by law to be delivered in connection with sales by the Underwriters or any dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was madewhen the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement or amend the Prospectus to comply with law, forthwith to prepare and furnish, at the expense of the Company, to the Underwriters and to the dealers (whose names and addresses the Underwriters will furnish to the Company) to which Shares may have been sold by the Underwriters on behalf of the Underwriters and to any other dealers upon request, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters shall reasonably request and to continue such qualification in effect so long as reasonably required for distribution of the Shares; provided that the Company will forthwith prepare shall not be required to file a general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and duly to the Underwriters as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company 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;
(h) during a period of three years from the effective date of the Registration Statement, to furnish to the Underwriters copies of all reports or other communications (financial or other) furnished to holders of the Shares, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or the Nasdaq Stock Market (“Nasdaq”); it being understood and agreed that posting such reports on the Commission’s Xxxxx website and/or on the Company’s website shall be sufficient;
(i) for a period of 180 days after the effective date of the Registration Statement not to (i) offer, pledge, announce the intention to sell, sell, contract to sell any option or contract to purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise without the prior written consent of the Underwriters, other than the Shares to be sold hereunder and any shares of Stock of the Company issued upon the exercise of options granted and grants of additional options under existing employee stock option plans; provided, however, that such 180-day period shall be extended up to 17 days if any Underwriter notifies the Company and the undersigned prior to the expiration of the 180-day period that such extension is necessary in order to permit any Underwriter to publish a research report in compliance with NASD Conduct Rule 2711(f)(4);
(j) to use the net proceeds received by the Company from the sale of the Shares pursuant to this Agreement in the manner specified in the Prospectus under the caption “Use of Proceeds”;
(k) to use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(l) not to (and to cause its Subsidiaries not to) take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in stabilization or manipulation of the Shares;
(m) to file with the SEC an appropriate supplement Commission such reports on Form 20-F and Form 6-K as may be required by Rule 463 under the Securities Act; and
(n) whether or amendment theretonot the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all costs and will deliver expenses incident to the Distributorperformance of its obligations hereunder, including without charge, such number of copies thereof as limiting the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification generality of the Units for sale in such states as Distributor may designate. Concurrent with foregoing, all costs and expenses incident to the effectiveness preparation, issuance, execution and delivery of the Shares, incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Company shall provide Prospectus and any preliminary prospectus (including in each case all exhibits, amendments and supplements thereto), incurred in connection with the registration or qualification of the Shares under the laws of such jurisdictions as the Underwriters may designate (including fees of counsel for the Underwriters and its disbursements), in connection with the listing of the Shares on the Nasdaq, related to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable theretofiling with, and clearance of the Distributor will sell Units only offering by, the NASD (including fees of counsel for the Underwriters and its disbursements), in such states or jurisdictions connection with the printing (including word processing and duplication costs) and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the furnishing to the Underwriters and dealers of copies of the Registration Statement and the Prospectus, including mailing and shipping, as herein provided, any expenses incurred by the Company in compliance connection with such restrictions a “road show” presentation to potential investors, the cost of preparing stock certificates and requirementsthe cost and charges of any transfer agent and any registrar.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the Initial purchaser as follows:
(a) The Company will not, either prior furnish to the Effective Date or thereafter during Initial Purchaser, without charge, such period number of copies of the Offering Memorandum as the Prospectus is required by law to be delivered in connection with sales of the Units, file Initial Purchaser may reasonably request.
(b) The Company will not make any amendment or supplement to the Registration Statement Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which the ProspectusInitial Purchaser shall reasonably object after being so advised, whether pursuant including by way of filing any document with the Commission that would be incorporated therein by reference.
(c) The Company consents to the 1933 Actuse of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Senior Notes are offered by the Initial Purchaser and by all dealers to whom Senior Notes may be sold, 1940 Act or otherwisein connection with the offering and sale of the Senior Notes.
(d) If, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of at any time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Closing Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company Company, or in the Distributor opinion of counsel for the Initial Purchaser, should be set forth in the Prospectus Offering Memorandum in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum in order to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchaser and dealers a reasonable number of copies thereof as the Distributor may reasonably requestthereof.
5.5 At (e) The Company will cooperate with the Initial Purchaser and with its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary counsel in connection with the qualification of the Units Senior Notes for offering and sale by the Initial Purchaser and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such 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 service of process in suits, other than those arising out of the offering or sale of the Senior Notes, in any jurisdiction where it is not now so subject.
(f) So long as any of the Notes are outstanding, the Company will furnish to the Initial Purchaser (i) as soon as available, a copy of each report of the Company mailed to stockholders generally or filed with any stock exchange or regulatory body and (ii) from time to time such other information concerning the Company as the Initial Purchaser may reasonably request.
(g) 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 Initial Purchaser terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchaser 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 Initial Purchaser for all out-of-pocket expenses (including reasonable fees and expenses of its 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.
(h) The Company will apply the net proceeds from the sale of the Senior Notes to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum under the caption "Use of Proceeds."
(i) Except as stated in this Agreement and in the Offering Memorandum, the Company has not taken, nor will any of them 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 Senior Notes to facilitate the sale or resale of the Senior Notes. Except as permitted by the Act, the Company will not distribute any offering material in connection with the Exempt Resales.
(j) The Company will use its best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) From and after the Closing Date, so long as any of the Notes are outstanding and are "restricted securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information (the "Additional Company Information") required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resales of the Notes.
(l) The Company has complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(m) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in such states respect of any security (as Distributor may designate. Concurrent defined in the Act) that would be integrated with the effectiveness sale of the Senior Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or the Eligible Purchasers of the Senior Notes.
(n) The Company agrees to comply with all the terms and conditions of the Registration StatementRights Agreement and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by DTC for "book entry" transfer.
(o) The Company agrees to cause the Exchange Offer to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Exchange Notes to be offered in exchange for the Senior Notes, and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(p) The Company agrees that prior to any registration of the Senior Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be required, the Indenture shall be qualified under the Trust Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures will be entered into in connection therewith.
(q) The Company shall provide will not voluntarily claim, and will resist actively all attempts to claim, the benefit of any usury laws against holders of the Notes.
(r) The Company will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable theretoClosing Date, and to satisfy all conditions precedent to the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsInitial Purchaser's obligations hereunder to purchase the Senior Notes.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notcovenants and agrees with the Placement Agent as follows:
(a) The Company, either prior to the Effective Date or thereafter during such period as a prospectus relating to the Prospectus is Shares would be required by law to be delivered in connection with sales of the UnitsShares by an underwriter or dealer, (i) will not file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Placement Agent within a reasonable period of time prior to the filing thereof and the Distributor Placement Agent shall not have objected thereto in good faith. The Distributor may but shall not , (ii) will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be obligated to propose from time to time such amendment or amendments to incorporated by reference into the Registration Statement or Prospectus, and such (iii) will cause each amendment or supplement or supplements to the Prospectus asto be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the light case of future developmentsany document to be incorporated therein by reference, mayto be filed with the Commission as required pursuant to the Exchange Act, in within the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreementtime period prescribed.
5.2 (b) The Company will notify the Distributor Placement Agent promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by any securities or other governmental authority (including, without limitation, the SEC Commission) of any jurisdiction for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by any securities or other governmental authority (including, without limitation, the SEC Commission) of any jurisdiction of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iviii) of the happening of any event during the period mentioned in Section 4(a) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; misleading and (viv) of receipt by the Company or any representative or attorney of the Company of any other communication from any securities or other governmental authority (including, without limitation, the SEC Commission) of any jurisdiction relating to the Company, any of the Registration Statement, any preliminary prospectus, Preliminary Prospectus or the Prospectus. For purposes of this sectionIf at any time any securities or other governmental authority (including, informal requests by or acts of without limitation, the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions Commission) of any undertakings contained in jurisdiction shall issue any order suspending the effectiveness of the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver promptly use best efforts to obtain the withdrawal of such order.
(c) If, at any time when a Prospectus relating to the DistributorShares is required to be delivered under the Act, without charge and in any event occurs as a timely mannerresult of which the Prospectus, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that then amended or supplemented, would, in the judgment of counsel to the Company or counsel to the Distributor should be set forth in the Prospectus Placement Agent, include any untrue statement of a material fact or omit to state a material fact necessary in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or the Registration Statement, as then amended or supplemented, would, in the 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 to make the statements therein not misleading, or if for any other reason it is necessary necessary, in the judgment of counsel to the Company or counsel to the Placement Agent, at any time to amend or supplement or amend the Prospectus or the Registration Statement to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Placement Agent and, subject to Section 4(a) hereof, will promptly prepare and duly file with the SEC Commission, at the Company's expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus that corrects such statement or amendment thereto, omission or effects such compliance and will deliver to the DistributorPlacement Agent, without charge, such number of copies thereof as the Distributor Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Placement Agent.
(d) The Company will furnish to the Placement Agent and its counsel, without charge, (i) two copies of the registration statement described in Section 3(a) hereof, including financial statements and schedules, and all exhibits thereto and (ii) so long as a prospectus relating to the Shares is required to be delivered under the Act, as many copies of each Preliminary Prospectus (if any) or the Prospectus or any amendment or supplement thereto as the Placement Agent may reasonably request.
5.5 At its own expense(e) The Company will comply with all the undertakings contained in the Registration Statement.
(f) Prior to the sale of the Shares to the Investors, the Company agrees to prepare, execute, will cooperate with the Placement Agent and file any and all documents and to take all actions that may be reasonably necessary its counsel in connection with the registration or qualification of the Units Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Placement Agent may request; provided, that in such states as Distributor may designate. Concurrent with no event shall the effectiveness Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) During the Registration Statementperiod of three years commencing on the date hereof, the Company shall provide will furnish to the Distributor in writing a list Placement Agent copies of those states such financial statements and other jurisdictions in which periodic and special reports as the Units are qualified for sale, together with restrictions and requirements applicable theretoCompany may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Distributor Placement Agent a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will sell Units only make generally available to holders of its securities, as soon as may be practicable, but in such states no event later than the last day of the fifteenth full calendar month following the current calendar quarter, 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).
(i) The Company will not at any time, directly or jurisdictions 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.
(j) The Company will apply the net proceeds from the offering and sale of the Shares in compliance with such restrictions and requirementsthe manner set forth in the Prospectus under the caption "Use of Proceeds."
Appears in 1 contract
Samples: Placement Agency Agreement (Impac Mortgage Holdings Inc)
Agreements of the Company. 5.1 The Company covenants and agrees with each Underwriter as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsOffered ADSs by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Underwriters promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriters, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECUnderwriters, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to the Distributoreach Underwriter, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Offered ADSs may reasonably requestbe sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Distributoreach Underwriter, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor each Underwriter may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify the Representative and, if requested by the Representative, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company agrees will cooperate with the Underwriters and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriters may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants).
(h) The Company will make generally available to holders of its securities as soon as may designate. Concurrent be practicable an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriters or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NYSE, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company and of the Accountants, (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriters), and (xi) all other costs and expenses of the Underwriters incident to the performance of its obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other charges of counsel to the Underwriters (in addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Company be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $75,000 in the aggregate. Upon the consummation of the transactions contemplated by this Agreement, the Underwriters agree to pay a fee of an aggregate of $185,000 to Clipperton Finance SARL (the “Clipperton Fee”); each such Underwriter shall pay a portion of the Clipperton Fee equal to the percentage of Firm ADSs that such Underwriter is purchasing.
(j) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and sale of the Offered ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of the Representative, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company, including Ordinary Shares and ADSs, or any other securities convertible into or exchangeable for its Ordinary Shares, ADSs or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any equity securities of the Company, including Ordinary Shares and ADSs, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares, ADSs or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representative waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of the Representative, grant options to purchase Ordinary Shares or ADSs at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Representative, other than registration statements on Form S-8.
(n) The Company will cause each of its executive officers and directors to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of the Representative, sell, contract to sell or otherwise dispose of any ADSs or Ordinary Shares or rights to acquire such shares according to the terms set forth in Schedule IV hereto.
(o) Prior to the termination of the Option, the Company shall provide not issue any press release or other communication directly or indirectly and hold no press conferences with respect to the Distributor in writing a list Company or any Subsidiary, the financial condition, results of those states and other jurisdictions in which operations, business, properties, assets, or liabilities of the Units are qualified for saleCompany or any Subsidiary, together with restrictions and requirements applicable theretoor the offering of the Offered ADSs, without prior notice to the Representative.
(p) The Company will use its best efforts to cause the Offered ADSs and the Distributor will sell Units only in Underlying Shares to be listed on the NYSE and to maintain such states or jurisdictions and in compliance with such restrictions and requirementslisting on the NYSE.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notagrees with the Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any it is necessary for a post-effective amendment or supplement to the Registration Statement to be declared or to become effective before the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion offering of the Distributor's counselSecurities may commence, be necessary or advisable. Subject the Company will use its best efforts to Section 5.4cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soRepresentatives, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any immediately after such post-effective amendment thereto becomes has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) 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 or the circumstances then prevailing not misleading or (y) conflict with the information contained in the Registration Statement, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments, or request by the SEC Commission or its staff on or for amendments an amendment of or supplements a supplement to the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or for additional informationinformation regarding the Company, and of all action by the SEC with respect to any amendment to any Registration Statement its affiliates or Prospectus that may be filed from time to time its filings with the SECCommission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that such purpose or any examination pursuant to Section 8(e) of the threat thereofAct relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Securities; (iii) 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 institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event that event, which results in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements 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 the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) The Company will furnish to the Representatives and counsel to the Representatives, without charge: (i) ten (10) 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 the Underwriters may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) ten (10) copies of the exhibits to the Incorporated Documents. The Company will pay all of the expenses of printing or other production of all documents relating to the offering.
(e) 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 the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Execution Time to the Closing Time and will furnish the Representatives with all the provisions copies of any undertakings contained in the Registration Statementsuch documents a reasonable amount of time prior to such proposed filing.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and the Company will expeditiously deliver to the DistributorUnderwriters and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any printed supplemental material Issuer Free Writing Prospectus as the Distributor Representatives 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 Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by any Underwriters or dealers. If during such period of time time: (i) any event shall occur that as a result of which, in the judgment of the Company Company, or the Distributor should be set forth in the opinion of counsel for the Underwriters, the Prospectus in order as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make any statement the statements therein, in the light of the circumstances under which it was madewhen the Prospectus is delivered to a purchaser, not misleading, ; or (ii) if it is necessary to supplement the Prospectus or amend the Prospectus Registration Statement (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Company will promptly notify the Representatives of such event and forthwith prepare and duly and, subject to the provisions of paragraph (e) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and the Representatives agree that the Prospectus should be amended or supplemented, the Company, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will: (i) cooperate with the Underwriters and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Distributor Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Securities; (iii) pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; and (iv) file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(t) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. 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 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will make generally available to its security holders and to the Representatives a consolidated earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of this Agreement 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.
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Company will furnish to the Representatives: (i) as soon as available, if requested, 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 the Representatives may reasonably request.
5.5 At its own expense(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof, or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection comply with the qualification terms or fulfill any of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness conditions of the Registration Statementthis Agreement, the Company shall provide reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Securities substantially in accordance with the description set forth in the Prospectus.
(m) If Rule 430A, 430B or 430C of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise the Underwriters of the time and manner of such filing.
(n) 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, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(o) The Company will comply and will use its best efforts to cause its tenants to comply in all material respects with all applicable Environmental Laws (as hereinafter defined).
(p) The Company will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and to continue to have each of its corporate subsidiaries (other than its taxable REIT subsidiaries) comply with all applicable laws and regulations necessary to maintain a status as a REIT or a “qualified REIT subsidiary” under the Code.
(q) The Company will use all reasonable best efforts to do or perform all things required to be done or performed by the Company prior to the Distributor Closing Date to satisfy all conditions precedent to the delivery of the Securities pursuant to this Agreement.
(r) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in writing the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, directly or indirectly, including the filing (or participation in the filing) of a list registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of those states Section 16 of the Exchange Act, any debt securities or guarantees thereon (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.
(s) The Company will comply with all applicable securities and other jurisdictions in which applicable laws, rules and regulations, including, without limitation, the Units are qualified for sale, together with restrictions and requirements applicable theretoXxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and will use its best efforts to cause the Distributor Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(t) Unless requested otherwise by the Representatives, the Company will sell Units only prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in the form attached hereto or as previously provided to, and approved by the Representatives and will file such states or jurisdictions final term sheet with the Commission as soon as practical after the Execution Time. The Company will file any other Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act and will pay any required registration fee for this offering pursuant to Rule 456(b)(1) under the Act within the time period required by such rule (without regard to the proviso therein relating to the four (4) Business Days extension to the payment deadline) and in compliance any event prior to the Closing Date. The Company will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with such restrictions and requirementsthe Commission in accordance with Rule 433(g) under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (National Retail Properties, Inc.)
Agreements of the Company. 5.1 The Company agrees with each of the Underwriters as follows:
(a) The Company will notprepare a supplement to the Prospectus setting forth the amount of the Registered Notes covered thereby and the terms thereof not otherwise specified in the Prospectus, the price at which the Registered Notes are to be purchased by the Underwriters, either prior the initial public offering price or the method by which the price at which the Registered Notes are to be sold will be determined, the selling concessions and reallowances, if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Registered Notes , and the Company will timely file such supplement to the Effective Date prospectus with the SEC pursuant to, and within the time frame provided by, Rule 424(b) under the Act, but the Company will not file any amendments to the Registration Statement as in effect with respect to the Registered Notes or thereafter during any amendments or supplements to the Prospectus, or any Free Writing Prospectus to the extent required by Rule 433(d) under the Act, unless it shall first have delivered copies of such period amendments, supplements or Free Writing Prospectus to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement, or if the Underwriters shall have reasonably objected thereto promptly after receipt thereof; the Company will immediately advise the Underwriters or the Underwriters’ counsel (i) when notice is received from the SEC that any post-effective amendment to the Registration Statement has become or will become effective and (ii) of any order or communication suspending or preventing, or threatening to suspend or prevent, the offer and sale of the Registered Notes or of any proceedings or examinations that may lead to such an order or communication, whether by or of the SEC or any authority administering any state securities or Blue Sky law, as soon as the Company is advised thereof, and will use its best efforts to prevent the issuance of any such order or communication and to obtain as soon as possible its lifting, if issued. The Company will comply with the requirements applicable to any “issuer free writing prospectus” (as defined in Rule 433(h)(1) under the Act), including timely filing with the Commission, retention where required and legending. The Company will timely file with the Commission any Free Writing Prospectus relating to information delivered by an Underwriter to the Depositor and the Company in accordance with Section 4(d)(ii) of this Agreement (each such Free Writing Prospectus, an “Assumed Free Writing Prospectus”).
(b) If, at any time following the issuance of an “issuer free writing prospectus” or when the Prospectus relating to the Registered Notes is required by law to be delivered under the Act, any event occurred or occurs as a result of which such “issuer free writing prospectus” would conflict with the information in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been as then amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) would include an untrue statement of any request by the SEC for amendments a material fact or supplements omit to the Registration Statement state a material fact required to be stated therein or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company promptly will forthwith notify the Representative of such event and will promptly prepare and duly file with the SEC, at its own expense, an “issuer free writing prospectus” or an amendment or supplement to such Prospectus that will correct such statement or omission or an amendment that will effect such compliance. Neither the Representative’s consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 8 hereof.
(c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC an appropriate supplement or amendment thereto, any state securities authority concerning the offering or sale of the Registered Notes and will deliver (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the Distributoroffering or sale of the Registered Notes.
(d) The Company will furnish to the Underwriters, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Prospectus, the Disclosure Package and all amendments and supplements to such number of copies thereof documents relating to the Registered Notes, in each case in such quantities as the Distributor Underwriters may reasonably request.
5.5 At its own expense(e) The Company will cooperate with the Underwriters in listing the Registered Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriters and with their counsel in connection with the qualification of, or procurement of exemptions with respect to, the Registered Notes for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriters may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; 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 service of process in suits, other than those arising out of the offering or sale of the Registered Notes, in any jurisdiction where it is not now so subject.
(g) The Company consents to the use, in accordance with the securities or Blue Sky laws of such jurisdictions in which the Registered Notes are offered by the Underwriters and by dealers, of the Disclosure Package and of the Prospectus furnished by the Company.
(h) To the extent, if any, that the rating or ratings provided with respect to the Registered Notes by the rating agency or agencies that initially rate the Registered 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 Registered Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Registered Notes required to be filed with the SEC pursuant to 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 10 or Section 11 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 Registered Notes hereunder will be applied in accordance with the descriptions set forth in the Prospectus and the Disclosure Package.
(l) Except as stated in this Agreement, the Disclosure Package and 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 Registered Notes to facilitate the sale or resale of the Registered Notes.
(m) For a period from the date of this Agreement until the retirement of the Registered Notes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants’ reports furnished to the Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall xxxx its accounting and other records, if any, relating to the Trust Student Loans and shall cause the Servicer, SLC and SLC Receivables to xxxx their respective computer records relating to the Trust Student Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents
(o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company.
(p) 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, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection or transmit for filing with the qualification Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the Units for sale in such states as Distributor may designate. Concurrent with date of this Agreement, the effectiveness 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 effective date of the Registration Statement, (ii) the Company shall provide effective date of the most recent post-effective amendment to the Distributor in writing a list Registration Statement to become effective prior to the date of those states this Agreement and other jurisdictions in (iii) the date of the Company’s most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the Units are qualified for sale, together with restrictions and requirements applicable thereto, and provisions of Section 11(a) of the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsAct.
Appears in 1 contract
Samples: Underwriting Agreement (SLC Student Loan Trust 2008-1)
Agreements of the Company. 5.1 The Company agrees with the several U.S. ------------------------- Underwriters that:
(a) With your consent, the Company will not, either prior file the Prospectus pursuant to Rule 424 under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the Effective Date or thereafter during such period as the Prospectus Shares is required by law to be delivered in connection with sales of under the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Securities Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend will promptly advise the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, Representatives (i) when any amendment to the Registration Statement has been amended filed or supplemented and when any post-effective amendment thereto becomes effective; , (ii) of any request by the SEC Commission for amendments any amendment of or supplements supplement to the Registration Statement or the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings for that purpose or the threat thereof; purpose, and (iv) of the happening receipt by the Company of any event that in notification with respect to the judgment suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company makes will use its best efforts to prevent the issuance of any statement made in such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Company will not file any amendment or supplement to the Registration Statement or the Prospectus untrue (other than a prospectus or that requires prospectus supplement relating to an offering of debt or additional equity securities which offering is permitted by Section 4(f) hereof) unless the making Company has furnished to the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which they reasonably object.
(b) If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act, any event occurs as a result of any changes in the Registration Statement or which the Prospectus in order 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 light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if it is shall be necessary at any time to amend or supplement or amend the Prospectus to comply with lawthe Securities Act or the Exchange Act or the respective rules thereunder, the Company promptly will forthwith prepare and duly file with the SEC Commission, subject to paragraph (a) of this Section 4, an appropriate amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance.
(c) The Company will furnish such information, execute such instruments and take such action as may be required to qualify the Shares for sale under the laws of those states specified in a writing heretofore delivered by you and countersigned by the Company and such other jurisdictions as the Representatives may designate in which there is a change of law or regulation after the date hereof affecting the status of the Shares as exempt Shares under such laws and will maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required 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 or unlimited service of process in any jurisdiction where it is not now so subject.
(d) The Company will furnish to the Representatives a signed copy of the Registration Statement as originally filed and of each amendment thereto, all powers of attorney, consents and exhibits filed therewith (other than exhibits incorporated by reference), and will deliver to the DistributorRepresentatives conformed copies of the Registration Statement as originally filed and of each amendment thereto, without chargethe Preliminary Prospectus, the Prospectus and, so long as delivery of a prospectus by an U.S. Underwriter or dealer may be required by the Securities Act, all amendments of and supplements to such number of copies thereof documents, in each case as soon as available and in such quantities as the Distributor Representatives may reasonably request.
5.5 At its own expense(e) For a period of five calendar years from the date of this Agreement, the Company agrees will furnish (or cause to preparebe furnished) to each of the Representatives, executeupon request, copies of (i) all reports to stockholders of the Company and file (ii) all reports and financial statements filed with the Commission or with The Nasdaq National Market.
(f) During the period beginning from the date of the Prospectus and continuing to and including the 180th day thereafter, the Company and Citizens Utilities Company ("Citizens") each will not, directly or indirectly, offer, sell, or otherwise dispose of any and all documents and to take all actions that may be reasonably necessary shares of Common Stock or any securities convertible into or exchangeable or exercisable for any such shares of Common Stock (except for stock dividends paid in the normal course, stock splits or stock splits carried out in the form of stock dividends, shares issued under employee or director stock option or other benefit plans, shares issued as consideration in connection with acquisitions which have been disclosed to you and securities under prior contractual commitments, if any, which have been disclosed to you), without the qualification prior written consent of the Units for sale in such states Xxxxxx Brothers, Inc., which consent shall not be unreasonably withheld.
(g) The Company will make generally available to its security holders and to the Representatives, as Distributor may designate. Concurrent with soon as practicable, but not later than sixteen months after the effectiveness "effective date" of the Registration StatementStatement (as such term is defined in Rule 158(c) under the Securities Act), a consolidated earning statement (which need not be audited) of the Company shall provide to Company, covering a period of twelve-months beginning after such effective date which will satisfy the Distributor in writing a list provisions of those states and other jurisdictions in which Section 11(a) of the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsSecurities Act.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Electric Lightwave Inc)
Agreements of the Company. 5.1 The Company will not, either prior agrees with you:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the opinion of the Representatives it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriters and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet containing only a description of the Securities, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Representatives, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of the Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise you promptly and, if requested by you, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon your reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by you, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to you, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you 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.
(h) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(i) Prior to any public offering of the Securities, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the 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 Securities 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(k) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the Distributor record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor will 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (vi) the rating agencies in connection with the rating of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell Units only or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities; provided, however, the Company may, at any time, offer or sell or announce the offering of commercial paper issued in such states the ordinary course of business.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(o) To use its best efforts to do and perform all things required or jurisdictions necessary to be done and in compliance with such restrictions performed under this Agreement by the Company prior to the Closing Date and requirementsto satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company will notagrees with the Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any it is necessary for a post-effective amendment or supplement to the Registration Statement to be declared or to become effective before the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion offering of the Distributor's counselSecurities may commence, be necessary or advisable. Subject the Company will use its best efforts to Section 5.4cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soRepresentatives, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any immediately after such post-effective amendment thereto becomes has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would (x) 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 or the circumstances then prevailing not misleading or (y) conflict with the information contained in the Registration Statement, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement, omission or conflicting information; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(c) The Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing: (i) of any review, issuance of comments, or request by the SEC Commission or its staff on or for amendments an amendment of or supplements a supplement to the Registration Statement Statement, any Preliminary Prospectus or the Prospectus or for additional informationinformation regarding the Company, and of all action by the SEC with respect to any amendment to any Registration Statement its affiliates or Prospectus that may be filed from time to time its filings with the SECCommission, whether or not such filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation of any proceedings proceeding for that such purpose or any examination pursuant to Section 8(e) of the threat thereofAct relating to the Registration Statement or Section 8A of the Act in connection with the offering of the Securities; (iii) 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 institution or threatening of any proceeding for such purpose; and (iv) within the period of time referred to in the first sentence in subsection (f) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event that event, which results in the judgment of the Company makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) being untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements 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 the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(d) The Company will furnish to the Representatives and counsel to the Representatives, without charge: (i) ten (10) 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 the Underwriters may request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the Representatives may request; and (iv) ten (10) copies of the exhibits to the Incorporated Documents. The Company will pay all of the expenses of printing or other production of all documents relating to the offering.
(e) 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 the Representatives shall not previously have been advised or to which, after the Representatives shall have received a copy of the document proposed to be filed, the Representatives shall reasonably object; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in under which they are were made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply give the Representatives notice of its intention to make any other filing pursuant to the Exchange Act from the Execution Time to the Closing Time and will furnish the Representatives with all the provisions copies of any undertakings contained in the Registration Statementsuch documents a reasonable amount of time prior to such proposed filing.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by the Underwriters or any dealer (including circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and the Company will expeditiously deliver to the DistributorUnderwriters and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any amendment or supplement thereto), any Preliminary Prospectus and any printed supplemental material Issuer Free Writing Prospectus as the Distributor Representatives 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 Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and for such period of time thereafter as the Prospectus is required by the Act to be delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales by any Underwriters or dealers. If during such period of time time: (i) any event shall occur that as a result of which, in the judgment of the Company Company, or the Distributor should be set forth in the opinion of counsel for the Underwriters, the Prospectus in order as supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make any statement the statements therein, in the light of the circumstances under which it was madewhen the Prospectus is delivered to a purchaser, not misleading, ; or (ii) if it is necessary to supplement the Prospectus or amend the Prospectus Registration Statement (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the Company will promptly notify the Representatives of such event and forthwith prepare and duly and, subject to the provisions of paragraph (e) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and the Representatives agree that the Prospectus should be amended or supplemented, the Company, if requested by the Representatives, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will: (i) cooperate with the Underwriters and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions as the Distributor Underwriters may designate; (ii) maintain such qualifications in effect so long as required for the distribution of the Securities; (iii) pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; and (iv) file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(t) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. 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 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will make generally available to its security holders and to the Representatives a consolidated earnings statement, which need not be audited, covering a 12-month period commencing after the effective date of this Agreement and ending not later than
(j) During the period commencing on the date hereof and ending on the date occurring three (3) years hereafter, the Company will furnish to the Representatives: (i) as soon as available, if requested, 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 the Representatives may reasonably request.
5.5 At its own expense(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof, or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection comply with the qualification terms or fulfill any of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness conditions of the Registration Statementthis Agreement, the Company shall provide reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Securities substantially in accordance with the description set forth in the Prospectus.
(m) If Rule 430A, 430B or 430C of the Act is employed, the Company will timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise the Underwriters of the time and manner of such filing.
(n) 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, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(o) The Company will comply and will use its best efforts to cause its tenants to comply in all material respects with all applicable Environmental Laws (as hereinafter defined).
(p) The Company will use its best efforts to continue to qualify as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and to continue to have each of its corporate subsidiaries (other than its taxable REIT subsidiaries) comply with all applicable laws and regulations necessary to maintain a status as a REIT or a “qualified REIT subsidiary” under the Code.
(q) The Company will use all reasonable best efforts to do or perform all things required to be done or performed by the Company prior to the Distributor Closing Date to satisfy all conditions precedent to the delivery of the Securities pursuant to this Agreement.
(r) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge or otherwise dispose of or enter into any transaction that is designed to, or might reasonably be expected to, result in writing the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company, directly or indirectly, including the filing (or participation in the filing) of a list registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of those states Section 16 of the Exchange Act, any debt securities or guarantees thereon (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.
(s) The Company will comply with all applicable securities and other jurisdictions in which applicable laws, rules and regulations, including, without limitation, the Units are qualified for sale, together with restrictions and requirements applicable theretoXxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and will use its best efforts to cause the Distributor Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(t) Unless requested otherwise by the Representatives, the Company will sell Units only prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in the form previously provided to, and approved by the Representatives and will file such states or jurisdictions final term sheet with the Commission as soon as practical after the Execution Time. The Company will file any other Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act and will pay any required registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act within the time period required by such rule (without regard to the proviso therein relating to the four (4) Business Days extension to the payment deadline) and in compliance any event prior to the Closing Date. The Company will retain, pursuant to reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that is not filed with such restrictions and requirementsthe Commission in accordance with Rule 433(g) under the Securities Act.
Appears in 1 contract
Samples: Underwriting Agreement (National Retail Properties, Inc.)
Agreements of the Company. 5.1 The Company will notagrees with the several Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any amendment or supplement to it is necessary for the Registration Statement or a post-effective amendment thereto (or any Abbreviated Registration Statement) to be declared effective before the Prospectusoffering of the Shares may commence, whether pursuant the Company will endeavor to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4will advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any such post-effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectus or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company Act or any representative or attorney other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes Company will make every reasonable effort to obtain the withdrawal of this section, informal requests by or acts of such order at the SEC staff shall not be deemed actions of or requests by the SECearliest possible time.
5.3 (c) The Company will comply furnish to you, without charge (i) four (4) 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) four (4) 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 delivered to you, without charge, in such quantities as you have reasonably requested, copies of each form of the Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of any undertakings contained the Act and with the securities or Blue Sky laws of the jurisdictions in which the Registration StatementShares 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.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime 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 dealer, the Company will expeditiously deliver to the Distributoreach Underwriter and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any printed supplemental material amendment or supplement thereto) as the Distributor you may reasonably request. The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the Distributor should opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Representatives of the Distributor 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 disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request.
5.5 At its own expense(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 prepare, execute, reimburse the Representatives for all reasonable out-of-pocket expenses (including fees and file any and all documents and to take all actions that may be reasonably necessary 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 qualification description set forth in the Prospectus.
(l) If Rule 430A of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration StatementAct is employed, the Company shall provide will timely file the Prospectus pursuant to Rule 424(b) under the Distributor Act and will advise you of the time and manner of such filing.
(m) Except as provided in writing 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 (other than pursuant to its employee stock option plans, director stock option plans and employee stock purchase plans) or warrants to purchase Common Stock, for a list period of those states 90 days after the date of the Prospectus, 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 other jurisdictions 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 which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions this Agreement and in compliance with such restrictions the Prepricing Prospectus and requirementsProspectus, 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 have the shares of Common Stock which it agrees to sell under this Agreement listed, subject to notice of issuance, on the Nasdaq National Market on or before the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Digital Microwave Corp /De/)
Agreements of the Company. 5.1 The Company covenants and agrees with the Initial Purchasers as follows:
(a) The Company will not, either prior to advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchasers promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do sothem, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, within the period of time referred to in paragraph (ie) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) below, of any request by change in the SEC for amendments Company's condition (financial or supplements to the Registration Statement other), business, prospects, properties, net worth or the Prospectus results of operations, or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company event, which either makes any statement made in the Registration Statement Preliminary Memorandum or the Prospectus Final Memorandum (as then amended or supplemented) untrue or that requires the making of any additions to or changes in the Registration Statement Preliminary Memorandum or the Prospectus Final Memorandum (as then amended or supplemented) 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 Final Memorandum (vas then amended or supplemented) of receipt by the Company or to comply with any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEClaw.
5.3 (b) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver furnish to the DistributorInitial Purchasers, without charge and in a timely mannercharge, as many of the date of the Preliminary Memorandum and as of the date of the Final Memorandum, such number of copies of the Prospectus Preliminary Memorandum and any printed supplemental material the Final Memorandum, as the Distributor it may then be amended or supplemented, as they may reasonably request. If during .
(c) The Company will not make any amendment or supplement to the Final Memorandum of which the Initial Purchasers have not previously been given two business days' prior advice or to which the Initial Purchasers have reasonably objected after being so advised, or file any document which upon filing becomes an Incorporated Document, without delivering a copy of such period document to the Initial Purchasers, prior to or concurrently with such filing.
(d) The Company consents to the use of the Preliminary Memorandum and the Final Memorandum (and of any amendment or supplement thereto) in accordance with the securities or Blue Sky laws of the jurisdictions in which the Initial Notes are offered by the Initial Purchasers and by all dealers to whom Initial Notes may be sold in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the distribution of the Notes by the Initial Purchasers to Eligible Purchasers, any event shall occur that in the judgment of the Company or in the Distributor opinion of counsel for the Initial Purchasers should be set forth in the Prospectus Final Memorandum (as then amended or supplemented) in order to make any statement therein, in the light of the circumstances under which it was made, statements therein not misleading, or if it is necessary to supplement or amend the Prospectus Final Memorandum, or to file under the Exchange Act any document which upon filing becomes an Incorporated Document, to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment theretothereto or such document, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchasers and dealers a reasonable number of copies thereof as thereof. In the Distributor may reasonably requestevent that the Company and the Initial Purchasers agree that the Final Memorandum should be amended or supplemented, or that a document should be filed under the Exchange Act which upon filing becomes an Incorporated Document, the Company, if requested by the Initial Purchasers, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement or such document.
5.5 At its own expense, (f) The Company will cooperate with the Company agrees to prepare, execute, Initial Purchasers and file any and all documents and to take all actions that may be reasonably necessary with their counsel in connection with the qualification of the Units Initial Notes for offering and sale by the Initial Purchasers and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such 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 service of process in suits, other than those arising out of the offering or sale of the Initial Notes, in any jurisdiction where it is not now so subject.
(g) So long as any of the Initial Notes are outstanding, the Company will furnish to the Initial Purchasers (1) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and 2) from time to time such other information concerning the Company as the Initial Purchasers may reasonably request.
(h) The Company will apply the net proceeds from the sale of the Initial Notes to be sold by it hereunder substantially in accordance with the description set forth in the Final Memorandum.
(i) Except as stated in this Agreement and in the Preliminary Memorandum and the Final Memorandum, 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 Initial Notes to facilitate the sale or resale of the Initial Notes. Except as permitted by the Securities Act, the Company will not distribute any offering material in connection with the Exempt Resales.
(j) From and after the Closing Date, so long as any of the Initial Notes are outstanding and are "Restricted Securities" within the meaning of the Rule 144(a)(3) under the Securities Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of the Initial Notes and prospective purchasers of the Initial Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to permit compliance with Rule 144A in connection with resale of the Initial Notes.
(k) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate, and to cause its Subsidiaries not to sell, offer for sale or solicit offers to buy or otherwise negotiate, in such states respect of any security (as Distributor may designate. Concurrent defined in the Securities Act) that would be integrated with the effectiveness sale of the Initial Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Initial Notes.
(l) The Company agrees to comply with all of the terms and conditions of the Registration StatementRights Agreement, and all agreements set forth in the representation letters of the Company to The Depository Trust Company ("DTC") relating to the approval of the Initial Notes by DTC for "book entry" transfer.
(m) The Company agrees that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Indenture shall be qualified under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and that it will cause to be entered into any necessary supplemental indentures in connection therewith.
(n) Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, will engage in any directed selling efforts with respect to the Initial Notes, and each of them will comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph have the meanings given to them by Regulation S.
(o) The Company will not, until 60 days following the Closing Date, without the prior written consent of the Initial Purchasers, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company (other than the Notes).
(p) The Company will not, and will not permit any of its affiliates to, resell any Initial Notes that have been acquired by any of them unless and until a registration statement with respect to such Initial Notes filed pursuant to the Securities Act has been declared effective.
(q) The Company shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Initial Notes under any securities laws, and if at any time any securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Initial Notes under any securities laws, the Company shall provide use its reasonable best efforts to obtain the Distributor withdrawal or lifting of such order at the earliest possible time.
(r) The Company shall use its reasonable best efforts to effect the inclusion of the Initial Notes in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.PORTAL Market ("PORTAL")
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with each of the Initial Purchasers as follows:
(a) The Company will not, either prior furnish to the Effective Date or thereafter during such period Initial Purchasers, without charge, as the Prospectus is required by law to be delivered in connection with sales of the Unitsdate of the Offering Memorandum, file such number of copies of the Offering Memorandum as may then be amended or supplemented as they may reasonably request.
(b) The Company will not make any amendment or supplement to the Registration Statement Preliminary Offering Memorandum or the Prospectus, whether pursuant to the 1933 Act, 1940 Act Offering Memorandum of which the Initial Purchasers shall not previously have been advised or otherwise, unless to which they shall have reasonably objected within five business days after being furnished with a copy thereof shall first have been submitted of such proposed amendment or supplement.
(c) The Company consents to the Distributor within a reasonable period use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Offering Memorandum in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchasers and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes.
(d) If, at any time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion completion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if distribution of the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt Notes by the Company of a written request from Distributor Initial Purchasers to do soEligible Purchasers, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement occurs or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements thereininformation becomes known that, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or in the Distributor opinion of counsel for the Initial Purchasers, should be set forth in the Prospectus Offering Memorandum so that the Offering Memorandum does not include any untrue statement of material fact or omit to state a material fact necessary in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum in order to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver expeditiously furnish at its own expense to the Distributor, without charge, such Initial Purchasers and dealers a reasonable number of copies thereof thereof.
(e) The Company will cooperate with the Initial Purchasers and with their counsel in connection with the qualification or registration of the Notes for offering and sale by the Initial Purchasers and by dealers under (or obtain exemptions from the application of) the securities or Blue Sky laws of such jurisdictions as the Distributor Initial Purchasers may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualifications, registrations and exemptions; PROVIDED that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to 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. The Company will advise the Initial Purchasers promptly of the suspension or qualification or registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) For a period of 180 days from the date of the Offering Memorandum, the Company agrees not to, directly or indirectly, sell, offer to sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition in the future of), any debt securities of the Company or any of its Subsidiaries similar to the Notes (which debt securities shall not include borrowings in connection with a customary commercial credit facility), except (i) in exchange for the Exchange Notes in connection with the Exchange Offer or (ii) with the prior consent of the Initial Purchasers.
(g) For so long as any Notes or Exchange Notes remain outstanding, the Company will furnish to any Initial Purchaser upon request (i) as soon as practicable after the filing thereof, copies of the Annual Report on Form 10-K of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public or certified public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, the NYSE or any securities exchange or inter-dealer quotation system; (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its capital stock or debt securities (including the holders of the Notes); and (iv) from time to time such other information concerning the Company as the Initial Purchasers may reasonably request.
5.5 At (h) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum under the caption "Use of Proceeds."
(i) Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, neither the Company nor any of its own expenseAffiliates has taken, nor will any of them 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 security of the Company to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company agrees to prepare, execute, and file will not distribute any and all documents and to take all actions that may be reasonably necessary offering material in connection with the qualification Exempt Resales.
(j) The Company will use their best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages (PORTAL) MarketSM (the "PORTAL MARKETSM") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketSM and to permit the Notes to be eligible for clearance and settlement through DTC.
(k) During the period of two years after the Closing Date, the Company will not, and will not permit any of its Affiliates, to, resell any of the Units Notes that constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) The Company agrees that it will not and will cause its Affiliates not to make any offer or sale of securities of the Company of any class if, as a result of the doctrine of "integration" referred to in Rule 502 under the Act, such offer or sale would render invalid (for the purpose of the sale in of the Notes by the Company to the Initial Purchasers, (i) the resale of the Notes by the Initial Purchasers to Eligible Purchasers or (ii) the resale of the Notes by such states as Distributor may designate. Concurrent Eligible Purchasers to others) the exemption from the registration requirements of the Act provided by Section 4(2) thereof or by Rule 144A or by Regulation S thereunder or otherwise.
(m) The Company agrees to comply with all the effectiveness terms and conditions of the Registration StatementRights Agreement and all agreements set forth in the representation letter of the Company to DTC relating to the approval of the Notes by DTC for "book entry" transfer.
(n) The Company will take such steps as shall be necessary to ensure that neither the Company nor any of the Company's Subsidiaries becomes an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended.
(o) Each certificate for a Note will bear the legend contained in "Notice to Investors" in the Offering Memorandum for the time period and upon the other terms stated in the Offering Memorandum.
(p) Prior to the completion of the placement of the Notes by the Initial Purchasers with the Eligible Purchasers, the Company shall provide file, on a timely basis, with the Commission and the NYSE all reports and documents required to be filed under Section 13 or 15 of the Exchange Act. Additionally, at any time when the Company is not subject to Section 13 or 15 of the Exchange Act and so long as any of the Notes qualify as "restricted securities" within the meaning of Rule 144(a)(3) of the Act, for the benefit of holders and beneficial owners from time to time of Notes, the Company shall furnish, at its expense, upon request, to holders and beneficial owners of Notes and prospective purchasers of Notes information ("ADDITIONAL ISSUER INFORMATION") satisfying the requirements of Rule 144A(d)(4).
(q) The Company shall comply with the terms of the Indenture and the Offering Memorandum and shall promptly notify the Initial Purchasers if the Company discovers that any of its representations contained in this Agreement is not, at any time prior to the Distributor in writing a list completion of those states the distribution of the Notes, true and other jurisdictions in which correct, or if the Units are qualified for sale, together with restrictions Company has at any such time breached any of its obligations hereunder.
(r) The Company will do and requirements applicable theretoperform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date, and to satisfy all conditions precedent to the Distributor will sell Units only Initial Purchasers' obligations hereunder to purchase the Notes.
(s) The Company shall use its best efforts to cause (i) each of the Transactions to be consummated in such states or jurisdictions accordance with the terms of the Transaction Documents as described in the Offering Memorandum and (ii) each of the conditions to the consummation of the Transactions set forth in compliance with such restrictions and requirementseach of the Transaction Documents to be satisfied.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notagrees with the several ------------------------- U.S. Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any amendment or supplement to it is necessary for the Registration Statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the Prospectusoffering of the Shares may commence, whether pursuant the Company will endeavor to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4will advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-such post- effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectuses or the Prospectus Prospectuses or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectuses (vas then amended or supplemented) of receipt by to comply with the Company Act or any representative or attorney other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes Company will make every reasonable effort to obtain the withdrawal of this section, informal requests by or acts of such order at the SEC staff shall not be deemed actions of or requests by the SECearliest possible time.
5.3 (c) The Company will comply furnish to you, without charge (i) four 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) four 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 Prospectuses or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the U.S. Prepricing Prospectus. The Company consents to the use, in accordance with the provisions of any undertakings contained the Act and with the securities or Blue Sky laws of the jurisdictions in which the Registration StatementShares 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.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by the Act to be delivered in connection with sales by any U.S. Underwriter or dealer, the Company will expeditiously deliver to the Distributoreach U.S. Underwriter and each dealer, without charge and in a timely mannercharge, as many copies of the U.S. Prospectus (and of any printed supplemental material amendment or supplement thereto) as you may request. The Company consents to the use of the U.S. Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Shares are offered by the several 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 Distributor may reasonably requestU.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 Distributor should opinion of counsel for the U.S. Underwriters is required to be set forth in the U.S. Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the U.S. Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such U.S. Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Representatives of the Distributor several U.S. Underwriters, 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 proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the U.S. Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several U.S. Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may request.
5.5 At its own expense(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the U.S. Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to prepare, execute, reimburse the Representatives for all out-of-pocket expenses (including fees and file any and all documents and to take all actions that may be reasonably necessary 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 substantially in accordance with the qualification description set forth in the Prospectuses.
(l) If Rule 430A of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration StatementAct is employed, the Company shall provide 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) 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 120 days after the date hereof, without the prior written consent of Xxxxx Xxxxxx Inc., except for sales to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, U.S. Underwriters pursuant to this Agreement and the Distributor Managers pursuant to the International Underwriting Agreement.
(n) The Company has furnished or will sell Units only furnish to you "lock-up" letters, in such states or jurisdictions 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 compliance with such restrictions the International Underwriting Agreement and requirementsin 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 have the shares of Common Stock which it agrees to sell under this Agreement listed, subject to notice of issuance, on the New York Stock Exchange on or before the Closing Date.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the several Underwriters that:
(a) The Company will notuse its best efforts to cause the Company Registration Statement, either prior if not effective at the Execution Time, and any amendment thereof, to become effective. Subject to Section 8(c), if filing of the Company Prospectus is required under Rule 424(b), the Company will cause the Company Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the Effective Date applicable paragraph of Rule 424(b) within the time period prescribed. The Company will promptly advise the Representatives when the Company Registration Statement, if not effective at the Execution Time, shall have become effective. The Company has furnished or thereafter during such period will furnish to the Underwriters as many copies of any preliminary prospectus and the Company Prospectus as the Representatives reasonably request.
(b) During the period when the Company Prospectus is required by law the Act to be delivered in connection with sales of the UnitsDECS, the Company will, subject to Section 8(c), file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act subsequent to the time the Company Registration Statement becomes effective.
(c) During the period when the Company Prospectus is required by the Act to be delivered in connection with sales of the DECS, the Company will inform the Representatives of its intention to file any amendment or to the Company Registration Statement, any supplement to the Company Prospectus or any document that would as a result thereof be incorporated by reference in the Company Prospectus; will furnish the Representatives 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 the Representatives shall reasonably object.
(d) During the period when the Company Prospectus is required by the Act to be delivered in connection with sales of the DECS, the Company will notify the Representatives immediately, and confirm the notice in writing (with respect to clause (i), upon request), (i) of the effectiveness of any amendment to the Company Registration Statement, (ii) of the receipt of any comments from the Commission with respect to the Company Registration Statement or the Company Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (iiiii) of any request by the SEC for amendments or supplements Commission to amend the Company Registration Statement or any supplement to the Company Prospectus or for additional information, information relating thereto and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Company Registration Statement Statement, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation institution or to the Company's knowledge, the threatening of any proceedings for that purpose any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the threat thereof; lifting thereof at the earliest possible moment.
(ive) The Company has furnished or will furnish to the Representatives one copy of the happening originally executed Company Registration Statement (as originally filed) and of any event that in each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and a copy of all originally executed consents and certificates of experts, and has furnished or will furnish to each of the judgment Representatives as many conformed copies of the Company makes Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference into the Company Prospectus but without exhibits) as the Representatives may reasonably request.
(f) The Company will use its reasonable best efforts, in cooperation with the Trust and the Underwriters, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as the Representatives may designate and to maintain such qualifications in effect for a period of not less than one year from the date hereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided.
(g) The Company will make generally available to its security holders as soon as practicable, but not later than 45 days after the close of the period covered thereby (90 calendar days in the case the period corresponds to the fiscal year of the Company), an earnings statement made of the Company (in form complying with the provisions of Rule 158 under the Act), covering a period of 12 months beginning after the effective date of the Registration Statement or and covering a period of 12 months beginning after the Prospectus untrue or that requires the making effective date of any changes post-effective amendment to the Company Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Company will use its reasonable best efforts to comply with the Act and the Exchange Act. If at any time when the Company Prospectus is required by the Act to be delivered in connection with sales of the DECS any event shall occur or condition exist as a result of which it is necessary to amend the Company Registration Statement or amend or supplement the Company Prospectus in order that the Company Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, misleading in the light of the circumstances under which existing at the time it was made, not misleadingis delivered to a purchaser, or if it is shall be necessary at any such time to supplement amend the Company Registration Statement or amend or supplement the 19 Company Prospectus in order to comply with lawthe requirements of the Act, the Company will forthwith promptly prepare and duly file with the SEC an appropriate supplement or amendment theretoCommission, and will deliver subject to the Distributor, without chargeSection 8(d), such number of copies thereof amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Distributor may reasonably requestCompany Registration Statement or the Prospectus comply with such requirements.
5.5 At its own expense(i) For a period of three years after the Closing Date, the Company agrees will furnish or make available to preparethe Representatives copies of all annual reports, executequarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and file furnish such other documents, reports and information as shall be furnished by the Company to its stockholders generally.
(j) The Company will not be or become, at any and all documents and time prior to take all actions the expiration of three years after the Closing Date, an open-end investment trust, unit investment trust or face-amount certificate company that may is or is required to be reasonably necessary in connection with the qualification registered under Section 8 of the Units for sale in such states Investment Company Act of 1940, as Distributor may designate. Concurrent with amended.
(k) The Company will not, without the effectiveness prior written consent of the Registration StatementRepresentatives, offer, sell, contract to sell or otherwise dispose of any Shares (except for shares issuable upon conversion of securities or exercise of warrants and options outstanding as of the date of the Company shall provide Prospectus or pursuant to employee benefit plans) or warrants, rights or options convertible into or exercisable or exchangeable for Shares (except for the Distributor in writing rights or options pursuant to employee benefits plans existing on the date of the Company Prospectus) at any time for a list period of those states and other jurisdictions in which 90 days after the Units are qualified for sale, together with restrictions and requirements applicable thereto, and date of the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsCompany Prospectus.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with each of the Underwriters as follows:
(i) The Company will notuse its best efforts to cause the Registration Statement, either prior if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Effective Date or thereafter during such period as the Prospectus Shares is required by law to be delivered in connection under the Act, the Company (A) will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings 17 in the UnitsShares in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (B) will not file with the Commission the prospectus, any amendment or supplement to such prospectus or any amendment to the Registration Statement or of which the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless Representative shall not previously have been advised and furnished with a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the proposed filing thereof and as to which filing the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall given its consent, such consent to not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if unreasonably withheld.
(ii) As soon as the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by is advised or obtains knowledge thereof, the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify advise the Distributor promptly, and will confirm such advice in writing, Representative (iA) when the Registration Statement Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been amended or supplemented filed in accordance with said Rule 430A and when any post-effective amendment thereto to the Registration Statement becomes effective; (iiB) of any request made by the SEC Commission for amendments or supplements to amending the Registration Statement Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiC) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the initiation use of any proceedings Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(iii) The Company will (A) take or cause to be taken all such actions and furnish all such information as the threat thereofRepresentative may reasonably require in order to qualify the Shares for offer and sale under the state securities or Blue Sky laws of such jurisdictions as the Representative may designate, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Shares but not to exceed one year from the date of this Agreement, and (C) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); provided, however, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction.
(iv) The Company consents to the use of the happening Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Shares may be sold, 18 in connection with the offering or sale of the Shares and for such period of time thereafter as the Prospectus is required by law or the Rules and Regulations to be delivered in connection therewith. If, at any time when a prospectus relating to the Shares is required to be delivered under the Act or the Rules and Regulations, any event that in occurs as a result of which the judgment Prospectus, as then amended or supplemented, would include any untrue statement of the Company makes any statement made in the Registration Statement a material fact or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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, therein not misleading, or if it is becomes necessary at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company promptly will so notify the Representative and, subject to Section 5(i) hereof, will prepare and file with the Commission an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(v) As soon as practicable, but in any event not later than 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company will forthwith prepare make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and duly Regulations, and to the Representative, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act or the Rules and Regulations, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(vi) The Company will timely file all such reports, forms or other documents as may be required from time to time under the Act (including a report on Form SR, if required), the Rules and Regulations, the Exchange Act, and the rules and regulations thereunder, and all such reports, forms and documents filed will comply in all material respects as to form and substance with the SEC an appropriate supplement or amendment theretoapplicable requirements under the Act, the Rules and Regulations, the Exchange Act and the rules and regulations thereunder.
(vii) During a period of five years after the date hereof, the Company will furnish to its shareholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and 19 unaudited quarterly reports of earnings, and will deliver to the DistributorRepresentative:
(A) concurrently with furnishing such quarterly reports to its shareholders, statements of income of the Company for each quarter in the form furnished to the Company's shareholders and certified by the Company's principal financial or accounting officer;
(B) concurrently with furnishing such annual reports to its shareholders, a balance sheet of the Company as at the end of the preceding fiscal year, together with statements of operations, shareholders' equity, and cash flows of the Company for such fiscal year, accompanied by a copy of the report thereon of independent public accountants;
(C) as soon as they are available, copies of all information (financial or other) mailed to shareholders;
(D) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, the NASD or any securities exchange;
(E) every press release and every material news item or article of interest to the financial community in respect of the Company or its affairs which was released or prepared by the Company; and
(F) any additional information of a public nature concerning the Company or its business which the Representative may reasonably request. During such five-year 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.
(viii) The Company will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the Company, a Registrar (which may be the same entity as the Transfer Agent) for its Class A Common Stock.
(ix) The Company will furnish, without charge, to the Representative or on the Representative's order, at such number of copies thereof 20 place as the Distributor Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Representative may reasonably request.
5.5 At its own expense(x) The Company will not, directly or indirectly, without the prior written consent of the Representative, offer, sell, grant any option to purchase or otherwise dispose (or announce any offer, sale, grant of any option to purchase or other disposition) of any shares of Class A Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Class A Common Stock for a period of 180 days after the date hereof, except pursuant to this Agreement and except pursuant to employee benefit plans discussed in the Prospectus.
(xi) Neither the Company agrees to preparenor any of its officers or directors, execute, and file nor affiliates of any and all documents and to take all actions that may be reasonably necessary in connection with of them (within the qualification meaning of the Units for sale Rules and Regulations) will take, directly or indirectly, any action designed to, or which might in such states as Distributor may designate. Concurrent with the effectiveness future reasonably be expected to cause or result in, stabilization or manipulation of the Registration Statement, price of any securities of the Company.
(xii) The Company shall provide to will apply the Distributor net proceeds of the offering received by it in writing a list the manner set forth under the caption "Use of those states and other jurisdictions Proceeds" in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Jaymark Inc)
Agreements of the Company. 5.1 The Company will not, either prior covenants and agrees with the Placement Agent as follows:
(a) After the date of this Agreement and during any period in which a Prospectus relating to the Effective Date or thereafter during such period as the Prospectus Securities is required by law to be delivered by MLV under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify MLV promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare and file with the Commission, promptly upon MLV’s request, any amendments or supplements to the Registration Statement or Prospectus that, in MLV’s reasonable opinion, may be necessary or advisable in connection with sales the distribution of the UnitsSecurities by MLV (provided, however, that the failure of MLV to make such request shall not relieve the Company of any obligation or liability hereunder, or affect MLV’s right to rely on the representations and warranties made by the Company in this Agreement and provided, further, that the only remedy MLV shall have with respect to the failure to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant Prospectus relating to the 1933 Act, 1940 Act Securities or otherwise, a security convertible into the Shares or Warrants unless a copy thereof shall first have has been submitted to the Distributor MLV within a reasonable period of time prior to before the filing thereof and MLV has not objected thereto (provided, however, that the Distributor failure of MLV to make such objection shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if relieve the Company does not so amend of any obligation or liability hereunder, or affect MLV’s right to rely on the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt representations and warranties made by the Company of a written request from Distributor in this Agreement and provided, further, that the only remedy MLV shall have with respect to do so, Distributor may, at its option, terminate the failure to by the Company to obtain such consent shall be to cease making sales under this Agreement.
5.2 The ) and the Company will notify furnish to MLV at the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) time of filing thereof a copy of any request document that upon filing is deemed to be incorporated by the SEC for amendments or supplements to reference into the Registration Statement or Prospectus, except for those documents available via XXXXX; and (iv) the Company will cause each amendment or supplement to the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiCommission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement with the Commission under this Section 5(a), based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by the Company).
(b) The Company will advise MLV, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for that purpose or any such purpose; and it will promptly use its commercially reasonable efforts to prevent the threat thereof; (iv) of the happening issuance of any event that in stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise MLV promptly after it receives any request by the judgment of the Company makes Commission for any statement made in amendments to the Registration Statement or any amendment or supplements to the Prospectus untrue or that requires any Issuer Free Writing Prospectus or for additional information related to the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light offering of the circumstances in which they are made, not misleading; and (v) of receipt by the Company Securities or any representative or attorney of the Company of any other communication from the SEC relating for additional information related to the Company, the Registration Statement, the Prospectus or any preliminary prospectus, or Issuer Free Writing Prospectus.
(c) During any period in which a Prospectus relating to the Prospectus. For purposes of this section, informal requests Securities is required to be delivered by or acts MLV under the Securities Act with respect to the offer and sale of the SEC staff shall not Securities, (including in circumstances where such requirement may be deemed actions of or requests by satisfied pursuant to Rule 172 under the SEC.
5.3 The Securities Act), the Company will comply with all requirements imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. 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 any undertakings contained in and make all requisite filings with the Registration Statement.
5.4 On the Effective Date, Commission pursuant to said Rule 430A and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies notify MLV promptly of the Prospectus and any printed supplemental material as the Distributor may reasonably requestall such filings. If during such period of time any event shall occur that in the judgment occurs as a result of the Company or the Distributor should be set forth in which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make any statement the statements therein, in the light of the circumstances under which it was madethen existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or amend the Prospectus to comply with lawthe Securities Act, the Company will forthwith prepare promptly notify MLV to suspend the offering of Securities during such period and duly file with the SEC an appropriate Company will promptly amend or supplement the Registration Statement or amendment thereto, and will deliver Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) During any period in which the Prospectus relating to the Distributor, without charge, such number Securities is required to be delivered by MLV under the Securities Act with respect to the offer and sale of copies thereof as the Distributor may reasonably request.
5.5 At its own expenseSecurities, the Company agrees will use its reasonable best efforts to prepare, execute, and file any and all documents cause the Shares to be listed on the Exchange and to take all actions qualify the Securities for sale under the securities laws of such jurisdictions as MLV reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Securities; provided, however, that may the Company shall not be reasonably necessary required in connection with therewith to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
(e) The Company will furnish to MLV and its counsel (at the qualification expense of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating to the Securities is required to be delivered under the Securities Act (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities as MLV may from time to time reasonably request and, at MLV’s request, will also furnish copies of the Prospectus to each exchange or market on which sales of the Securities may be made; provided, however, that the Company shall provide not be required to furnish any document (other than the Prospectus) to MLV to the Distributor extent such document is available on XXXXX.
(f) The Company will make generally available to its security holders as soon as practicable, but in writing any event not later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement covering a list 12-month period that satisfies the provisions of those states Section 11(a) and Rule 158 of the Securities Act.
(g) The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) The Company will, at any time prior to the Closing Date, advise MLV promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document required to be provided to MLV pursuant to this Agreement.
(i) The Company will cooperate with any reasonable due diligence review conducted by MLV or its representatives in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as MLV may reasonably request.
(j) The Company agrees that on such dates as the Securities Act shall require, the Company will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act (each and every filing under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth, within the relevant period, the amount of Securities sold through MLV, the Net Proceeds to the Company and the compensation payable by the Company to MLV with respect to such Securities, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
(k) At the Closing Date, there shall be furnished to MLV a certificate, dated the date of its delivery, executed by each of the President and the Chief Financial Officer of the Company, in form and substance satisfactory to MLV, in the form attached hereto as Exhibit 5(k).
(l) On the Closing Date, the Company shall cause to be furnished to MLV written opinions of Norton Xxxx Xxxxxxxxx US LLP (“Company Counsel”), or other counsel satisfactory to MLV, in form and substance satisfactory to MLV and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented, and with customary assumptions and exceptions.
(m) On the Closing Date, the Company shall cause the Accountant to furnish MLV a letter (the “Comfort Letter”), dated the date the Comfort Letter is delivered, which shall meet the requirements set forth in this Section 5(m). The Comfort Letter shall be in a form and substance satisfactory to MLV, (i) confirming that the Accountant is an independent public accounting firm within the meaning of the Securities Act and the PCAOB, and (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other jurisdictions matters ordinarily covered by accountants’ “comfort letters” to underwriters in which connection with registered public offerings.
(n) The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the Units stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Securities other than MLV.
(o) The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is defined in the Investment Company Act.
(p) Other than an Issuer Free Writing Prospectus approved in advance by the Company and MLV in its capacity as the Placement Agent, neither MLV nor the Company (including its agents and representatives, other than MLV in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Securities hereunder.
(q) The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are qualified for salerecorded as necessary to permit the preparation of the Company’s consolidated financial statements in accordance with generally accepted accounting principals, together (iii) that receipts and expenditures of the Company are being made only in accordance with restrictions management’s and requirements applicable theretothe Company’s directors’ authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act, and the Distributor will sell Units only applicable regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such states or jurisdictions and in compliance with such restrictions and requirementsperiodic reports are being prepared.
Appears in 1 contract
Samples: Placement Agency Agreement (GreenHunter Resources, Inc.)
Agreements of the Company. 5.1 The Company agrees with SBI that:
(a) The Company will notuse its best efforts to cause the Company Registration Statement, either prior if not effective at the Execution Time, and any amendment thereof, to become effective under the Effective Date or thereafter during such period Act as promptly as possible and, if the Company elects to rely upon the PREP Procedures, to prepare the U.S. Company Prospectus is required in a form approved by law you and to be delivered in connection comply with sales the requirements of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period PREP Procedures and General Instruction II.L of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, Form F-10; if the Company does not so amend elect to rely on the PREP Procedures, the Company has obtained or will obtain as promptly as practicable but no later than 4:30 PM Toronto time on the date hereof from the Ontario Securities Commission a receipt or deemed receipt for the Final Canadian Prospectus, and has caused or will cause as promptly as possible but no later than 10:00 AM New York City time one business day after the date hereof, the Company Registration Statement and/or so to become effective under the Act or, in each case, at such later time or later date as SBI and the Company may agree to in writing. Prior to the termination of the offering of the DECS, the Company will not file any amendment of the Company Registration Statement or supplement to the Canadian Final Prospectus, or any amendment or supplement (i) if the Company has not elected to rely on the PREP Procedures, to the Canadian Prospectus, the U.S. Company Prospectus within fifteen days or any Supplementary Material or (ii) if the Company has elected to rely upon the PREP Procedures, to any U.S. Company Prospectus included in the Company Registration Statement at the time it becomes effective, the Canadian Prospectus, the U.S. Company Prospectus Supplement, the PREP Prospectus Supplement or any Supplementary Material, unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which SBI reasonably objects. The Company will advise SBI promptly after receipt it receives notice thereof, of the time when any amendment to the Company Registration Statement has been filed or becomes effective or any supplement to the Canadian Prospectus or the U.S. Company Prospectus or any amended Canadian Prospectus or U.S. Company Prospectus has been filed and will furnish SBI with copies thereof. The Company will file promptly all reports and definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 15 or 15(d) of the Exchange Act subsequent to the date of the U.S. Company Prospectus or with the Ontario Securities Commission pursuant to the Canadian Securities Laws subsequent to the date of the Canadian Prospectus and for so long as delivery of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 prospectus is required in connection with the offering or sale of the Shares in connection with the offering and sale of the DECS. The Company will notify the Distributor promptly, and will confirm such advice in writing, promptly advise SBI (i) when the Ontario Securities Commission shall have issued or be deemed to have issued a receipt for the Canadian Final Prospectus or Final PREP Prospectus, as applicable, when the Company Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; to the Company Registration Statement shall have been filed with the Commission or shall have become effective and when any supplement to the Canadian Prospectus or the U.S. Company Prospectus or any amended Canadian Prospectus, U.S. Company Prospectus or any Supplementary Material shall have been filed, (ii) of the receipt of any comments or other communications from the Ontario Securities Commission or from the Commission with respect to the Canadian Prospectus or the Company Registration Statement, (iii) of any request by the SEC Ontario Securities Commission to amend or supplement the Canadian Prospectus or for amendments any additional information, or supplements of any request by the Commission to amend the Company Registration Statement or to amend or supplement the U.S. Company Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; information (iiiiv) of the issuance by the SEC Ontario Securities Commission of any order having the effect of ceasing or suspending the distribution of the Shares or the institution or threatening of any proceeding for that purpose and (v) of the issuance by the Commission or the Ontario Securities Commission, as applicable, of any stop order suspending the effectiveness of the Company Registration Statement or any post-effective amendment ,or any order directed at any document incorporated by reference in the initiation Company Registration Statement, the Canadian Prospectus or the U.S. Company Prospectus or any amendment or supplement thereto, or any order preventing or suspending the use of any proceedings for that purpose U.S. Preliminary Company Prospectus, the U.S. Company Prospectus or the threat thereof; (iv) Canadian Prospectus or any amendment or supplement thereto or any post-effective amendment to the Company Registration Statement, or of the happening suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the institution or threatening of any event that in proceeding for any such purpose. The Company will use its best efforts to prevent the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making issuance of any changes in such order or stop order and, if issued, to obtain as soon as possible the Registration Statement or withdrawal thereof.
(b) Within the Prospectus in order to make the statements therein, in light of the circumstances in time during which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC a prospectus relating to the CompanyShares is required to be delivered under the Act, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all requirements imposed on it by the provisions Canadian Securities Laws or the Act and by the applicable rules and regulations of any undertakings contained in the Registration Statement.
5.4 On Ontario Securities Commission and the Effective DateCommission thereunder, and thereafter as from time to timetime in force, to the extent necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Canadian Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.U.S.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Agent that:
(a) At any time during an Offering Period or during the time a prospectus relating to the Effective Date or thereafter during such period as the Prospectus Notes is required by law to be delivered in connection with sales of under the UnitsAct, file any amendment prior to amending or supplement to supplementing the Registration Statement or the Prospectus, whether the Company will furnish the Agent and the Agent's counsel with a copy of each proposed amendment or supplement (other than an amendment or supplement to be made pursuant to incorporation by reference of a document filed under the 1933 Exchange Act, 1940 Act or otherwise, unless a copy Pricing Supplement or an amendment or supplement relating solely to an offering of debt securities other than the Notes). The Company will promptly cause the Prospectus together with each amendment thereof shall first have been submitted or supplement thereto to be transmitted to the Distributor within Commission for filing pursuant to Rule 424(b) by an appropriate method or will promptly cause the Prospectus together with each amendment thereof or supplement thereto to be filed with the Commission pursuant to said Rule. If the Prospectus is amended or supplemented (other than a reasonable period Pricing Supplement or an amendment or supplement relating solely to an offering of time prior debt securities other than the Notes), the Agent shall be furnished with such information relating to the such filing thereof as it may reasonably request, and the Distributor shall not have objected thereto in good faith. The Distributor may but Agent shall not be obligated to propose from time solicit offers to time purchase Notes so long as it is not reasonably satisfied that such amendment or amendments supplement complies in all material respects with the provisions of the Act and the Exchange Act. At any time during an Offering Period or during the time a prospectus relating to the Notes is required to be delivered under the Act, the Company will promptly advise the Agent of (i) the filing of any amendment or supplement to the Prospectus (other than a Pricing Supplement or an amendment or supplement relating solely to an offering of debt securities other than the Notes), (ii) the filing or effectiveness of any amendment to the Registration Statement and such supplement or supplements to Statement, (iii) the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request comments from Distributor to do sothe Commission relating to, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request requests by the SEC for amendments or supplements to Commission for, any amendment of the Registration Statement or any amendment of or supplement to the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of the receipt by the Company or of any representative or attorney notification with respect to the suspension of the Company qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any other communication from proceeding for such purpose. The Company will use its reasonable best efforts to prevent the SEC issuance of any such stop order or notice of suspension of qualification and, if issued, to obtain as soon as possible the withdrawal thereof. Upon the Agent's request, the Company will within a reasonable time inform the Agent of the aggregate principal amount of Notes registered under the Registration Statement that remain unissued.
(b) Within the time during which a prospectus relating to the CompanyNotes is required to be delivered under the Act, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all requirements imposed upon it by the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective DateAct, as now and hereafter amended, and thereafter by the rules and regulations of the Commission thereunder, as from time to timetime in force, so far as necessary to permit the Company will deliver to continuance of sales of or dealings in the Distributor, without charge Notes as contemplated by the provisions hereof and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably requestProspectus. If during such period of time any event shall occur that in the judgment occurs as a result of the Company or the Distributor should be set forth in which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make any statement the statements therein, in the light of the circumstances under which it was madethen existing, not misleading, or if if, in the opinion of the Company, during such period it is necessary to amend or supplement the Registration Statement or amend the Prospectus to comply with lawthe Act, the Company will forthwith prepare promptly notify the Agent to suspend the solicitation of offers to purchase the Notes in its capacity as Agent and duly file to cease sales of any Notes it may then own as principal and, to the extent required under the provision in the last sentence of this subsection (b), the Company will promptly amend or supplement the Registration Statement or the Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance. If such amendment or supplement, and any documents, certificates, opinions and letters furnished to the Agent pursuant to subsections (i), (j) and (k) of this Section 3 in connection with the SEC preparation and filing of such amendment or supplement are reasonably satisfactory in all respects to the Agent, upon the filing of such amendment or supplement with the Commission or effectiveness of an appropriate supplement amendment to the Registration Statement, the Agent will resume solicitation of offers to purchase Notes hereunder. Notwithstanding the foregoing, the Company shall not be required to comply with the provisions of subsection (b) of this Section 3 during any period from the time the Agent shall have been notified to suspend the solicitation of offers to purchase the Notes in its capacity as Agent (whether under this subparagraph (b) or amendment theretootherwise under this Agreement) to the time the Company shall determine that solicitation of offers to purchase the Notes should be resumed; provided that if the Agent holds any Notes as principal purchased pursuant to a Terms Agreement or otherwise pursuant to this Agreement, the Company shall comply with the provisions of subsection (b) of this Section 3 during the period when a Prospectus is required to be delivered pursuant to the Act.
(c) The Company will comply, in a timely manner, with all applicable requirements under the Exchange Act relating to the filing with the Commission of the Company's reports pursuant to Sections 13(a), 13(c) or 15(d) of the Exchange Act and, if then applicable, of the Company's proxy statements pursuant to Section 14 of the Exchange Act.
(d) The Company will use its best efforts to qualify the Notes for sale under the securities laws of such jurisdictions as the Agent reasonably designates, to maintain such qualifications in effect so long as required for the distribution of the Notes and, if requested by the Agent, to arrange for the determination of the legality of the Notes for purchase by institutional investors, except that the Company shall not be required in connection therewith 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 or unlimited service of process in any jurisdiction where it is not now so subject.
(e) The Company will furnish to the Agent copies of the Registration Statement and the Prospectus (including all documents incorporated by reference therein), and will deliver all amendments of and supplements to the DistributorRegistration Statement or the Prospectus which are filed with the Commission during the period in which a prospectus relating to the Notes is required to be delivered under the Act (including all documents filed by an amendment or supplement with the Commission during such period which are deemed to be incorporated by reference therein), without charge, in each case in such number of copies thereof quantities as the Distributor Agent may from time to time reasonably request.
5.5 At (f) The Company will make generally available to its own expensesecurity holders and to the Agent as soon as practicable, but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which any amendment of or supplement to the Prospectus (other than a Pricing Supplement or an amendment or supplement relating solely to an offering of debt securities other than the Notes) is filed pursuant to Rule 424 under the Act, which shall satisfy the provisions of Section 11(a) of the Act.
(g) The Company shall, whether or not any sale of Notes is consummated or this Agreement is terminated, pay all expenses incident to the performance of its obligations under this Agreement and under any Terms Agreement, including, without limitation, the Company agrees to preparefees and disbursements of its accountants and counsel, executethe cost of printing (or other production) and delivery of the Registration Statement and the Prospectus, all amendments thereof and supplements thereto, the Indentures, and file any all other documents relating to the offering, the cost of preparing, printing, packaging and all documents delivering the Notes, the fees and to take all actions that may be reasonably necessary disbursements (including reasonable fees of counsel) incurred in connection with the qualification of the Units Notes for sale in and determination of eligibility for investment of the Notes under the securities or Blue Sky laws of such states jurisdictions as Distributor the Agent may designate. Concurrent , the fees and disbursements of the Trustees, the fees of any agency that rates the Notes, the fees and expenses in connection with any listing of the Notes on the New York Stock Exchange, Inc. (the "New York Stock Exchange") or such other securities exchange agreed to in writing by the Company, the fees and expenses incurred with respect to any filing with the effectiveness National Association of Securities Dealers, Inc. and the reasonable fees and disbursements of Dewex Xxxxxxxxxx XXX ("Dewex Xxxxxxxxxx"), as counsel for the Agent, or other counsel reasonably satisfactory to both the Agent and the Company, and such other expenses, including, without limitation, advertising expenses as may be agreed upon by the Agent and the Company; provided, however, that with respect to any purchase of Notes by the Agent as principal pursuant to a Terms Agreement, the fees and disbursements of Dewex Xxxxxxxxxx xx other counsel to the Agent relating to such purchase shall be paid by the Agent and shall not be paid by the Company.
(h) During the term of this Agreement, the Company shall furnish to the Agent such relevant documents and certificates of officers of the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for saleProspectus, together with restrictions and requirements applicable any amendments thereof or supplements thereto, the Indentures, the Notes, this Agreement, the Procedures, any Terms Agreement and the Distributor will sell Units only performance by the Company of its obligations hereunder or thereunder as the Agent may from time to time reasonably request and shall promptly notify the Agent orally, followed by written notice of any downgrading, or of its receipt of any notice of any intended downgrading, in such states or jurisdictions and in compliance with such restrictions and requirements.the rating accorded any of the Company's securities by Moodx'x Xxxestor Service
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Representative, without charge, a copy of one signed copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by the SECpost-effective amendment thereto, including financial statements and schedules, and all exhibits thereto.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Nxxxxxx & Company, LLC and, if requested by Nxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor may designate. Concurrent required under the Rules and Regulations, to the extent not available on the Commission’s EXXXX system, 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 effectiveness fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Representative all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NCM, (vi) any filings required to be made in connection with clearance of the offering of the Shares with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company shall provide (but not those of counsel for the Underwriters, except as otherwise provided herein) and of each of the Accountants, (ix) the transfer agent for the Shares, (x) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings), and (xi) all other costs and expenses of the Underwriters incident to the Distributor in writing a list performance of those states their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other jurisdictions charges of counsel to the Underwriters (in which addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Units are qualified for saleCompany be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $100,000 in the aggregate.
(j) The Company will not at any time, together with restrictions directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(k) The Company will apply the net proceeds from the offering and requirements applicable thereto, sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Distributor Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Nxxxxxx & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Nxxxxxx & Company, LLC waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company other than on Form S-8 without the prior written consent of Nxxxxxx & Company, LLC.
(n) The Company will cause each of its executive officers and directors and certain stockholders designated by the Representative to, enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of Nxxxxxx & Company, LLC, sell, contract to sell Units only or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in such states or jurisdictions and in compliance with such restrictions and requirementsSchedule IV hereto.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Agent that:
(a) At any time during an Offering Period or during the time a prospectus relating to the Effective Date or thereafter during such period as the Prospectus Notes is required by law to be delivered in connection with sales of under the UnitsAct, file any amendment prior to amending or supplement to supplementing the Registration Statement or the Prospectus, whether the Company will furnish the Agent and the Agent's counsel with a copy of each proposed amendment or supplement (other than an amendment or supplement to be made pursuant to incorporation by reference of a document filed under the 1933 Exchange Act, 1940 Act or otherwise, unless a copy Pricing Supplement or an amendment or supplement relating solely to an offering of securities other than the Notes). The Company will promptly cause the Prospectus together with each amendment thereof shall first have been submitted or supplement thereto to be transmitted to the Distributor within Commission for filing pursuant to Rule 424(b) by an appropriate method or will promptly cause the Prospectus together with each amendment thereof or supplement thereto to be filed with the Commission pursuant to said Rule. If the Prospectus is amended or supplemented (other than a reasonable period Pricing Supplement or an amendment or supplement relating solely to an offering of time prior securities other than the Notes), the Agent shall be furnished with such information relating to the such filing thereof as it may reasonably request, and the Distributor shall not have objected thereto in good faith. The Distributor may but Agent shall not be obligated to propose from time solicit offers to time purchase Notes so long as it is not reasonably satisfied that such amendment or amendments supplement complies in all material respects with the provisions of the Act and the Exchange Act. At any time during an Offering Period or during the time a prospectus relating to the Notes is required to be delivered under the Act, the Company will promptly advise the Agent of (i) the filing of any amendment or supplement to the Prospectus (other than a Pricing Supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), (ii) the filing or effectiveness of any amendment to the Registration Statement and such supplement or supplements to Statement, (iii) the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request comments from Distributor to do sothe Commission relating to, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request requests by the SEC for amendments or supplements to Commission for, any amendment of the Registration Statement or any amendment of or supplement to the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiiv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of the receipt by the Company or of any representative or attorney notification with respect to the suspension of the Company qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any other communication from proceeding for such purpose. The Company will use its reasonable best efforts to prevent the SEC issuance of any such stop order or notice of suspension of qualification and, if issued, to obtain as soon as possible the withdrawal thereof. Upon the Agent's request, the Company will within a reasonable time inform the Agent of the aggregate principal amount of Notes registered under the Registration Statement that remain unissued.
(b) Within the time during which a prospectus relating to the CompanyNotes is required to be delivered under the Act, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all requirements imposed upon it by the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective DateAct, as now and hereafter amended, and thereafter by the rules and regulations of the Commission thereunder, as from time to timetime in force, so far as necessary to permit the Company will deliver to continuance of sales of or dealings in the Distributor, without charge Notes as contemplated by the provisions hereof and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably requestProspectus. If during such period of time any event shall occur that in the judgment occurs as a result of the Company or the Distributor should be set forth in which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make any statement the statements therein, in the light of the circumstances under which it was madethen existing, not misleading, or if if, in the opinion of the Company, during such period it is necessary to amend or supplement the Registration Statement or amend the Prospectus to comply with lawthe Act, the Company will forthwith prepare promptly notify the Agent to suspend the solicitation of offers to purchase the Notes in its capacity as Agent and duly file with the SEC an appropriate supplement or amendment theretoto cease sales of any Notes it may then own as principal and, and will deliver to the Distributor, without charge, such number extent required under the provision in the last sentence of copies thereof as the Distributor may reasonably request.
5.5 At its own expensethis subsection (b), the Company agrees will promptly amend or supplement the Registration Statement or the Prospectus (at the expense of the Company) so as to prepare, executecorrect such statement or omission or effect such compliance. If such amendment or supplement, and file any documents, certificates, opinions and all documents letters furnished to the Agent pursuant to subsections (i), (j) and to take all actions that may be reasonably necessary (k) of this Section 3 in connection with the qualification preparation and filing of such amendment or supplement are reasonably satisfactory in all respects to the Units for sale in Agent, upon the filing of such states as Distributor may designate. Concurrent amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement, the Agent will resume solicitation of offers to purchase Notes hereunder. Notwithstanding the foregoing, the Company shall provide not be required to comply with the provisions of subsection (b) of this Section 3 during any period from the time the Agent shall have been notified to suspend the solicitation of offers to purchase the Notes in its capacity as Agent (whether under this subparagraph (b) or otherwise under this Agreement) to the Distributor in writing time the Company shall determine that solicitation of offers to purchase the Notes should be resumed; provided that if the Agent holds any Notes as principal purchased pursuant to a list Terms Agreement or otherwise pursuant to this Agreement, the Company shall comply with the provisions of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.subsection (b) of this
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the Representatives that:
(a) The Company will notuse its best efforts to cause the Registration Statement, either prior if not effective at the Execution Time, and any amendment thereof, to become effective. Prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales termination of the Unitsoffering of the Shares, the Company will not file any amendment of the Registration Statement or supplement to the Registration Statement or Prospectus without the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion consent of the Distributor's counsel, be necessary or advisableRepresentatives. Subject to Section 5.4the foregoing sentence, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended become or supplemented becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus, properly completed, and when 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 filing. In addition, if the Effective Time of the Initial Registration Statement is prior to the Execution Time and an additional registration statement is necessary to register a portion of the Shares under the Act but the Effective Time thereof has not occurred as of such execution and delivery, the Company will file the additional registration statement or, if filed, will file a post-effective amendment thereto becomes with the Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this Agreement or, if earlier, on or prior to the time the Prospectus is printed and distributed to any Underwriter, or will make such filing at such later date as shall have been consented to by the Representatives. The Company will promptly advise the Representatives (A) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective; , (iiB) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (C) when, prior to termination of the offering of the Shares, any amendment to the Registration Statement shall have been filed or become effective, (D) of any request by the SEC Commission for amendments or supplements to any amendment of the Registration Statement or supplement to the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiE) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation institution or threatening of any proceedings proceeding for that purpose or the threat thereof; and (ivF) of the happening receipt by the Company of any event that in notification with respect to the judgment suspension of the Company makes qualification of the Shares for sale in any statement made in the Registration Statement jurisdiction or the Prospectus untrue initiation or that requires the making threatening of any changes in proceeding for such purpose. The Company will use its best efforts to prevent the Registration Statement or issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus in order 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 light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if it is shall be necessary to amend the Registration Statement or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations thereunder, the Company promptly will notify Unterberg Harris of such event and promptly will prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or effect such compliance. Neither Unterberg Harris' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) As soon as practicable, but not later than the "Availability Date" (as defined below), the Company will forthwith prepare make generally available to its security holders and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number Representatives an earning statement or statements of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with which will satisfy the qualification provisions of Section 11(a) of the Units for sale in such states as Distributor may designateAct and Rule 158 under the Act. Concurrent with the effectiveness For purposes of the Registration Statementpreceding sentence, "Availability Date" means the Company shall provide to 45th day after the Distributor in writing a list end of those states and other jurisdictions in which the Units are qualified for salefourth fiscal quarter following the fiscal quarter that includes the Effective Date, together with restrictions and requirements applicable theretoexcept that, and if such fourth fiscal quarter is the Distributor will sell Units only in last quarter of the Company's fiscal year, "Availability Date" means the 90th day after the end of such states or jurisdictions and in compliance with such restrictions and requirementsfourth fiscal quarter.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the Initial Purchaser as follows:
(a) The Company will not, either prior to advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchaser promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soit, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, within the period of time referred to in paragraph (ie) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) below, of any request by change in the SEC for amendments Company's financial condition, business, prospects, properties, net worth or supplements to the Registration Statement results of operations, or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) 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 Offering Memorandum (vas then amended or supplemented) of receipt by the Company or to comply with any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEClaw.
5.3 (b) The Company will comply with all furnish to the provisions Initial Purchaser, without charge, as of any undertakings contained in the Registration Statementdate of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as it may reasonably request.
5.4 On (c) The Company will not make any amendment or supplement to the Effective Date, Preliminary Offering Memorandum or to the Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which it shall reasonably object in writing after being so advised.
(d) Prior to the execution and thereafter from time to timedelivery of this Agreement, the Company has delivered or will deliver to the DistributorInitial Purchaser, without charge and charge, in a timely mannersuch quantities as the Initial Purchaser shall have reasonably requested or may hereafter reasonably request, as many copies of the Prospectus Preliminary Offering Memorandum. The Company consents to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchaser and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum so furnished by the Company. The Company consents to the use of the Offering Memorandum (and of any printed supplemental material as amendment or supplement thereto) in accordance with the Distributor securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Initial Purchaser and by all dealers to whom Notes may reasonably request. If during such period be sold, in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the resale of the Notes by the Initial Purchaser to Eligible Purchasers, any event shall occur that in the judgment of the Company or in the Distributor opinion of counsel for the Initial Purchaser should be set forth in the Prospectus Offering Memorandum (as then amended or supplemented) in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchaser and dealers a reasonable number of copies thereof as thereof. In the Distributor may reasonably requestevent that the Company and the Initial Purchaser agree that the Offering Memorandum should be amended or supplemented, the Company, if requested by the Initial Purchaser, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement.
5.5 At (f) The Company will cooperate with the Initial Purchaser and with its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary counsel in connection with the qualification of the Units Notes and the Common Stock issuable upon conversion of the Notes for offering and sale by the Initial Purchaser and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may reasonably designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such 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 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.
(g) So long as any of the Notes are outstanding, the Company will furnish to the Initial Purchaser (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 the Initial Purchaser may reasonably request.
(h) 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 Initial Purchaser terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchaser 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 Initial Purchaser for all reasonable out-of-pocket expenses (including reasonable fees and expenses of its counsel) incurred by it in connection herewith.
(i) The Company will apply the net proceeds from the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum.
(j) Except as stated in this Agreement and in the Preliminary Offering Memorandum and Offering Memorandum, 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 Notes to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company will not distribute any offering material in connection with the Exempt Resales.
(k) To the extent necessary, the Company will use its best efforts as soon as possible after such time as it becomes necessary, to submit to its stockholders for approval, an amendment to its articles of incorporation to increase the authorized number of shares of Common Stock, such that, if such proposal is approved, the Company will have, as of the close of business on such date, available free from pre-emptive rights, and reserved for issuance upon conversion of the Notes, a number of authorized but unissued shares of Common Stock which, when added to the number of shares of Common Stock held in its treasury, will be sufficient to honor the conversion in full of all outstanding Notes.
(l) From and after the Closing Date, so long as any of the Notes are outstanding and are "Restricted Securities" within the meaning of Rule 144(a)(3) under the Act or, if earlier, until two years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Notes.
(m) The Company has complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
(n) The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in such states respect of any security (as Distributor may designate. Concurrent defined in the Act) that would be integrated with the effectiveness sale of the Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or the Eligible Purchasers of the Notes.
(o) The Company agrees to comply with all of the terms and conditions of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsRights Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Telegroup Inc)
Agreements of the Company. 5.1 The Company will notagrees with the Underwriter as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any it is necessary for a post-effective amendment or supplement to the Registration Statement or to be declared effective before the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion offering of the Distributor's counselShares may commence, be necessary or advisable. Subject the Company will endeavor to Section 5.4cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any such post-effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectus Supplement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of 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 (x) in the Registration Statement (as then amended or the Prospectus supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement (as then amended or supplemented) in order to state a material fact required by the Act or the Prospectus regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading or (y) in the Prospectus (as then amended or supplemented) in order to state a material fact or to make the statements therein, in the light of the circumstances in under which they are were made, not misleading; and , or of the necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company Act or any representative or attorney other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes Company will make every reasonable effort to obtain the withdrawal of this section, informal requests by or acts of such order at the SEC staff shall not be deemed actions of or requests by the SECearliest possible time.
5.3 (c) The Company will comply furnish to you, without charge, (i) two conformed copies of the Registration Statement as originally filed with the Commission 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 reasonably request, and (iv) two 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 delivered to you, without charge, in such quantities as you have requested, copies of the Prepricing Prospectus Supplement, if any. The Company consents to the use, in accordance with the provisions of any undertakings contained the Act and with the securities or Blue Sky laws of the jurisdictions in which the Registration StatementShares are offered by the Underwriter and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus Supplement so furnished by the Company.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the Underwriter 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 the Distributoreach Underwriter and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any printed supplemental material amendment or supplement thereto) as the Distributor 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 or real estate syndication laws of the jurisdictions in which the Shares are offered by the Underwriter and by any 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 the Underwriter or any dealer. If during such period of time any event shall occur that in the judgment of the Company or in the Distributor should opinion of counsel for the Underwriter is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriter and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Underwriter, agree that the Distributor 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 proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the several Underwriter and by dealers under the securities or Blue Sky laws or real estate syndication laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company will furnish to you as soon as available, a copy of each report of the Company mailed to shareholders or filed with the Commission, and from time to time such other information concerning the Company as you may reasonably request.
5.5 At its own expense(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 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 to be complied with or fulfilled by the Company, the Company agrees to preparereimburse the Underwriter for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Underwriter) 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 the Prospectus Supplement 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, executethe Company will not sell, offer to sell, solicit an offer to buy, contract to sell, grant any option to purchase (other than pursuant to the Company's 1994 Stock Option Plan, as amended (the "Option Plan"), or the Company's Dividend Reinvestment and Stock Purchase Plan (the "DRIP")) or otherwise transfer or dispose of any shares of Common Stock or any other securities convertible into, or exercisable or exchangeable for, shares of Common Stock (other than the Common Stock issuable upon exercise of (i) the Company's 9.16% Series A Convertible Redeemable Preferred Stock and 9.16% Series B Convertible Redeemable Preferred Stock (collectively, the "Convertible Redeemable Preferred Stock") and (ii) the warrants to purchase shares of Common Stock issued on December ___, 1996 in an underwritten public offering (the "Warrants")) for a period of 45 days after the date of the Prospectus, without the prior written consent of Raymond James & Associates, Xxx..
(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 executive officers named in the Prospectus.
(o) Except as stated in this Agreement and in any Prepricing Prospectus Supplement 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 list the Shares on The New York Stock Exchange.
(q) The Company will use its best efforts to continue to qualify as a "real estate investment trust" under the Code.
(r) The Company will not file any and all documents and to take all actions that may be reasonably necessary in connection registration statement with the qualification Commission for the registration of any securities of the Units Company for sale in such states as Distributor may designate. Concurrent with a period of 30 days after the effectiveness date of the Prospectus Supplement without the prior written consent of Raymond James & Associates, Xxx.
(s) The Company will not undertake any transaction which constitutes a "refinancing" under the terms of the Registration StatementRights Agreement dated as of June 30, 1995 by and between the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsGalesi Partnerships (the "Registration Rights Agreement") which would trigger demand registration rights under the Registration Rights Agreement for a period of 30 days after the date of the Prospectus Supplement without the prior written consent of Raymond James & Associates, Xxx.
Appears in 1 contract
Samples: Underwriting Agreement (Walden Residential Properties Inc)
Agreements of the Company. 5.1 The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection agrees with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4you:
(a) To advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor you, to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or amendments or supplements to the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or such purposes, (iii) when any amendment to the threat thereof; Registration Statement becomes effective, and (iv) of the happening of any event that during the period referred to in the judgment of the Company Section 5(d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of at any time the Commission shall issue any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in stop 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you five conformed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits and documents incorporated therein by reference, and to furnish to you and each Underwriter designated by you such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits but including documents incorporated therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall provide be satisfactory to you, and to file the Prospectus in such form with the Commission within the applicable period specified in Rule 424(b) under the Act; during the period specified in Section 5(d) below, not to file any further amendment to the Distributor 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 writing connection with the distribution of the Securities by you, and to use its best efforts to cause any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day after the date of this Agreement and from time to time thereafter for such period as in the opinion of counsel for the Underwriters a list prospectus is required by the Act 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 those the Prospectus (and of any amendment or supplement to the Prospectus and any documents incorporated therein by reference) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law, and to furnish to each Underwriter and to any dealer as many copies thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the 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 registration or qualification in effect so long as required for distribution of the Securities and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation in any jurisdiction 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 Securities, in any jurisdiction in which it is not now so subject.
(g) To make generally available to its security holders as soon as practicable an earnings statement covering the twelve-month period ending March 31, 2000 that shall satisfy the provisions of Section 11(a) of the Act.
(h) So long as the Securities are outstanding, to furnish to you as soon as available copies of all reports or other communications furnished to its security holders or furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the registration and delivery of the Securities under the Act and all other fees and expenses in connection with the preparation, printing, filing and distribution of the Registration Statement (including financial statements and exhibits), any preliminary prospectus, the Prospectus and all amendments and supplements to any of the foregoing, including the mailing and delivering of copies thereof to the Underwriters and dealers in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) all expenses in connection with the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and all costs of 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 registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Securities, (vi) the costs and charges of any transfer agent, registrar and/or depositary (including the Depository Trust Company), (vii) any fees charged by rating agencies for the rating of the Securities, (viii) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Securities and (ix) all other jurisdictions costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in which this Section.
(j) During the Units are qualified for saleperiod beginning on the date hereof and continuing to and including the Closing Date, together with restrictions not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities and requirements applicable thereto(ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
(k) Not to voluntarily claim, and to actively resist any attempts to claim, the Distributor will sell Units only in such states benefit of any usury laws against the holders of the Securities.
(l) To use its reasonable best efforts to do and perform all things required or jurisdictions necessary to be done and in compliance with such restrictions performed under this Agreement by the Company prior to the Closing Date and requirementsto satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Standard Pacific Corp /De/)
Agreements of the Company. 5.1 The Company will notcovenants and agrees with each of the several Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to become effective at the earliest possible time and, either if required, to file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A under the Securities Act and to furnish copies of the Prospectus to the Underwriters in New York City prior to 10:00 a.m., New York City time, on the Effective Date or thereafter during Business Day next succeeding the date of this Agreement in such period quantities as the Prospectus is required by law Representatives may reasonably request;
(b) to be delivered in connection with sales deliver, at the expense of the UnitsCompany, file to the Representatives a signed copy of the final amendment to the Registration Statement in the form as declared effective by the Commission, including exhibits and to each other Underwriter a conformed copy of the Registration Statement (as originally filed) and each amendment thereto, in each case without exhibits and, during the period mentioned in Section 4(e) below, to each of the Underwriters as many copies of the Prospectus (including all amendments and supplements thereto) as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to before or after the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements becomes effective, to furnish to the Prospectus as, in the light of future developments, may, in the opinion Representatives a copy of the Distributor's counsel, be necessary proposed amendment or advisable. Subject supplement for review and not to Section 5.4, if file any such proposed amendment or supplement to which the Company does not so amend Representatives reasonably object;
(d) to advise the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) Representatives promptly when the Registration Statement has been amended or supplemented and become effective, when any post-effective amendment thereto to the Registration Statement has been filed or becomes effective; (ii) , when any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof, of any request by the SEC Commission for amendments or supplements any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose order preventing or suspending the threat thereof; (iv) of the happening use of any event that in the judgment of the Company makes any statement made in the Registration Statement preliminary prospectus or the Prospectus untrue or that requires the making initiation or threatening of any changes proceeding for that purpose, of the occurrence of any event, within the period referenced in Section 4(e) below, as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the Registration Statement light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, and of the 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 or the initiation or threatening of any proceeding for such purpose; and to use its best efforts to prevent the issuance of any such stop order, or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of any order suspending any such qualification of the shares, or notification of any such order thereof and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is required by law to be delivered in connection with sales by the Underwriters or any dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was madewhen the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement or amend the Prospectus to comply with law, forthwith to prepare and furnish, at the expense of the Company, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and to continue such qualification in effect so long as reasonably required for distribution of the Shares; provided that the Company will forthwith prepare shall not be required to file a general consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and duly to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company 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;
(h) during a period of three years from the effective date of the Registration Statement, to furnish to the Representatives copies of all reports or other communications (financial or other) furnished to holders of the Shares, and copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange or the Nasdaq National Market (the “Nasdaq”); it being understood and agreed that posting such reports on the Commission’s Xxxxx website and/or on the Company’s website shall be sufficient;
(i) for a period of 180 days after the effective date of the Registration Statement not to (i) offer, pledge, announce the intention to sell, sell, contract to sell any option or contract to purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise without the prior written consent of the Representatives, other than the Shares to be sold hereunder and any shares of Stock of the Company issued upon the exercise of options granted and grants of additional options under existing employee stock option plans; [provided, however, that such 180-day period shall be extended up to 17 days if any Underwriter notifies the Company and the undersigned prior to the expiration of the 180-day period that such extension is necessary in order to permit any Underwriter to publish a research report in compliance with NASD Conduct Rule 2711(f)(4)];
(j) to use the net proceeds received by the Company from the sale of the Shares pursuant to this Agreement in the manner specified in the Prospectus under the caption “Use of Proceeds”;
(k) to use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq;
(l) not to (and to cause its Subsidiaries not to) take, directly or indirectly, any action designed to, or that might reasonably be expected to cause or result in stabilization or manipulation of the Shares;
(m) to file with the SEC an appropriate supplement Commission such reports on Form 20-F and Form 6-K as may be required by Rule 463 under the Securities Act; and
(n) whether or amendment theretonot the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all costs and will deliver expenses incident to the Distributorperformance of its obligations hereunder, including without charge, such number of copies thereof as limiting the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification generality of the Units for sale in such states as Distributor may designate. Concurrent with foregoing, all costs and expenses incident to the effectiveness preparation, issuance, execution and delivery of the Shares, incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Company shall provide Prospectus and any preliminary prospectus (including in each case all exhibits, amendments and supplements thereto), incurred in connection with the registration or qualification of the Shares under the laws of such jurisdictions as the Representatives may designate (including fees of counsel for the Underwriters and its disbursements), in connection with the listing of the Shares on the Nasdaq, related to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable theretofiling with, and clearance of the Distributor will sell Units only offering by, the NASD (including fees of counsel for the Underwriters and its disbursements), in such states or jurisdictions connection with the printing (including word processing and duplication costs) and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the furnishing to the Underwriters and dealers of copies of the Registration Statement and the Prospectus, including mailing and shipping, as herein provided, any expenses incurred by the Company in compliance connection with such restrictions a “road show” presentation to potential investors, the cost of preparing stock certificates and requirementsthe cost and charges of any transfer agent and any registrar.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will nothereby agrees with the Initial Purchasers as follows:
(a) Prior to amending or supplementing the Offering Memorandum, either prior the Company shall furnish to the Effective Date Initial Purchasers for review a copy of each such proposed amendment or thereafter during supplement, and the Company shall deliver any such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any proposed amendment or supplement to which the Registration Statement or the ProspectusInitial Purchasers reasonably object.
(b) If, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and completion of the Distributor shall not have objected thereto placement of the Series A Notes by the Initial Purchasers with the Eligible Purchasers (as evidenced by a notice in good faith. The Distributor may but shall not be obligated to propose writing from time to time such amendment or amendments the Initial Purchasers to the Registration Statement and such Company), any event shall occur or condition exist as a result of which it is necessary to amend or supplement or supplements the Offering Memorandum in order to make the Prospectus asstatements therein, in the light of future developmentsthe circumstances when the Offering Memorandum is delivered to a purchaser, maynot misleading, or if in the opinion of the Distributor's counselInitial Purchasers or counsel for the Initial Purchasers it is otherwise necessary to amend or supplement the Offering Memorandum to comply with law, the Company agrees promptly to prepare (subject to Section 5(a) hereof), and furnish at its own expense to the Initial Purchasers, amendments or supplements to the Offering Memorandum so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances when the Offering Memorandum is delivered to a purchaser, be misleading or so that the Offering Memorandum, as amended or supplemented, will comply with law. The Company hereby expressly acknowledges that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each Offering Memorandum, amendment or supplement referred to in this Section 5(b).
(c) The Company agrees to furnish the Initial Purchasers, without
(d) The Company shall cooperate with the Initial Purchasers and counsel for the Initial Purchasers to qualify or register the Series A Notes for sale under (or obtain exemptions from the application of) the Blue Sky Laws of those jurisdictions designated by the Initial Purchasers and shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the completion of the placement of the Series A Notes by the Initial Purchasers with the Eligible Purchasers. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Initial Purchasers promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Series A Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment.
(e) The Company shall take all reasonable action necessary to enable Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., Moodx'x Xxxestors Service, Inc. and Duff & Phelxx xx provide their respective credit ratings of the Notes.
(f) The Company will cooperate with the Initial Purchasers and use its reasonable best efforts to permit the Notes to be eligible for clearance and settlement through the facilities of DTC.
(g) Prior to the completion of the placement of the Notes by the Initial Purchasers with the Eligible Purchasers (as evidenced by a notice in writing from the Initial Purchasers to the Company), the Company shall file, on a timely basis, with the Commission and the New York Stock Exchange all reports and documents required to be filed under Section 13 or advisable15(d) of the Exchange Act. Subject Additionally, at any time when the Company is not subject to Section 5.413 or 15(d) of the Exchange Act, if for the benefit of holders and beneficial owners from time to time of Notes, the Company does not so amend shall furnish, at its expense, upon request, to holders and beneficial owners of Notes and prospective purchasers of Notes information satisfying the requirements of subsection (d)(4)(i) of Rule 144A ("Rule 144A Information").
(h) The Company shall comply in all material respects with all provisions and obligations of, and shall cause the Exchange Offer to be made on the appropriate form as contemplated by, the Registration Statement and/or so supplement Rights Agreement, and shall comply in all material respects with all applicable federal and state securities laws in connection with the Prospectus within fifteen days after receipt by Exchange Offer.
(i) The Company agrees that it will not and will cause its Affiliates not to make any offer or sale of securities of the Company of any class if as a written request from Distributor result of the doctrine of "INTEGRATION" referred to do soin Rule 502 under the Securities Act, Distributor may, at its option, terminate this Agreementsuch offer or sale would render
(j) Each certificate for a Note will bear the legend contained in "Notice to Investors" in the Offering Memorandum for the time period and upon the other terms stated in the Offering Memorandum.
5.2 (k) The Company will notify use its best efforts to cause the Distributor promptlyNotes to qualify for initial designation and continued designation as PORTAL securities in the NASD PORTAL Market (the "PORTAL MARKET").
(l) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company under this Agreement, including: (i) the fees, disbursements and expenses of counsel to the Company and accountants of the Company in connection with the sale and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, and will all other fees and expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified herein, (ii) all costs and expenses related to the transfer and delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, (iii) all costs of printing or reproducing this Agreement, the other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Series A Notes, (iv) all expenses in connection with the registration or qualification of the Series A Notes for offer and sale under the securities or Blue Sky laws of the several states and all costs of printing or reproducing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memoranda relating thereto not to exceed $10,000), (v) the cost of printing certificates representing the Series A Notes, (vi) all expenses and listing fees in connection with the application for quotation of the Series A Notes in the PORTAL Market, (vii) the fees and expenses of the Trustee in connection with the Indenture and the Notes, (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 Notes, (x) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, and (xi) and all other costs and expenses incident to the perfor mancx xx the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(m) To advise the Initial Purchasers promptly and, if requested by the Initial Purchasers, confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC any state securities commission of any stop order suspending the effectiveness qualification or exemption from qualification of any Series A Notes for offering or sale in any jurisdiction designated by the Registration Statement Initial Purchasers pursuant to Section 5(d) hereof, or the initiation of any proceedings proceeding by any state securities commission or 8 any other federal or state regulatory authority for that such purpose or the threat thereof; and (ivii) of the happening of any event during the period referred to in Section 5(c) below that in the judgment of the Company makes any statement of a material fact made in the Registration Statement Preliminary Offering Memorandum or the Prospectus Offering Memorandum untrue or that requires the making of any additions to or changes in the Registration Statement Preliminary Offering Memorandum or the Prospectus Offering Memorandum in order to make the statements thereintherein not misleading. The Company shall use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws and, in light if at any time any state securities commission or other federal or state regulatory authority shall issue an order suspending the qualification or exemption of any Series A Notes under any state securities or Blue Sky laws, the circumstances in which they are madeCompany shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(n) During the period beginning on the date hereof and continuing to and including the Closing Date, not misleading; and (v) to offer, sell, contract to sell or otherwise transfer or dispose of receipt by any debt securities of the Company or any representative warrants, rights or attorney options to purchase or otherwise acquire debt securities of the Company substantially similar to the Notes (other than (i) the Notes and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Initial Purchasers. Donaxxxxx, Xxfkxx & Xenrxxxx Xxxurities Corporation, on behalf of the several Initial Purchasers, may, in its sole discretion, waive in writing the performance by the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, one or the Prospectus. For purposes of this section, informal requests by or acts more of the SEC staff shall not be deemed actions of foregoing covenants or requests by extend the SECtime for their performance.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the several Purchasers that:
(a) The Company will not, either prior advise you promptly of any proposal to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment amend or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment Purchased Preference Stock, and will furnish you a copy thereof prior to any Registration Statement or Prospectus that may be filed from time to time the filing thereof with the SEC; Commission.
(iiib) The Company will furnish to you copies of the issuance registration statement relating to the Preference Stock as originally filed and all amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related prospectus, the Prospectus, and all amendments and supplements to such documents (except amendments to exhibits and supplements relating to Preference Stock that is not Purchased Preference Stock), in each case as soon as available and in such quantities as you reasonably request for the purposes contemplated by the SEC of Act.
(c) If at any stop order suspending time when a prospectus relating to the effectiveness of Purchased Preference Stock is required to be delivered under the Registration Statement Act or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of Rules and Regulations, any event that in the judgment occurs as a result of the Company makes any statement made in the Registration Statement or which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or that requires the making of any changes in the Registration Statement or the Prospectus in order omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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 at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Purchasers and promptly prepare and duly file with the SEC Commission an amendment or supplement to the Registration Statement or any appropriate supplement filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and deliver in connection therewith, such Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company's obligation under this Section 4(c)), and provided further that any such Prospectus or amendment thereto, or supplement required later than nine months from the date hereof shall be furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Preference Stock for offering and sale under the securities laws of any state or jurisdiction of the United States as the Purchasers may reasonably request and will deliver use its best efforts to continue such qualification in effect so long as required for the Distributordistribution of the Purchased Preference Stock; provided, without chargehowever, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such number of copies thereof as state or jurisdiction or to comply with any other requirement deemed by the Distributor may reasonably requestCompany to be unduly burdensome.
5.5 At (e) The Company will make generally available to its own expensesecurity holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement.
(f) For a period of one year, the Company agrees will furnish to prepare, executeyou copies of any report or definitive proxy statement which the Company shall file with the Commission under the Exchange Act, and file copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally. For purposes of this clause (f), any and all documents and information filed by the Company on the Commission's XXXXX system will be deemed furnished to take all actions that may you in satisfaction of this clause (f).
(g) The Company will apply the net proceeds from the offering of the Purchased Preference Stock as set forth under the caption "Use of Proceeds" in the Prospectus Supplement.
(h) If a public offering of the Purchased Preference Stock is to be reasonably necessary made, the Company will not offer or sell any of its other Preference Stock (other than pursuant to any employee benefit or other plan in connection with effect on the date of this Agreement) prior to 120 days after the Closing Date without the consent of the Purchasers.
(i) The Company will 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 use of the Prospectus, of the suspension of the qualification of the Units Purchased Preference Stock for offering or sale in such states as Distributor may designate. Concurrent with the effectiveness any jurisdiction or of the Registration Statementinitiation or threatening of any proceeding for any such purpose; and, in the Company shall provide event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the Distributor in writing a list prompt withdrawal of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsorder.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will not, either prior agrees with the Underwriter:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered in connection with sales of by the UnitsUnderwriter or a dealer, file including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Underwriter of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 ActUnderwriter and to dealers, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company will prepare a final term sheet for the Securities containing only a description of the Securities, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt a form approved by the Company Underwriter, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (e) The Company will notify represents that (other than the Distributor promptlyFinal Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Underwriter, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Underwriter shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule I hereto. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities 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 (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule I hereto, or (iii) (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise the Underwriter promptly and, if requested by the Underwriter, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon the Underwriter’s reasonable request, any amendment or any representative or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by the Underwriter, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company shall provide will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(g) To furnish to the Distributor Underwriter, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to the Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as the Underwriter may reasonably request.
(h) During the Prospectus Delivery Period, to furnish to the Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as the Underwriter or dealer may reasonably request.
(i) Prior to any public offering of the Securities, to cooperate with the Underwriter and counsel for the Underwriter in writing connection with the registration or qualification of the Securities for offer and sale by the Underwriter and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Underwriter may request, to continue such qualification in effect so long as required for distribution of the Securities 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 that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a list period of those states at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and other jurisdictions Rule 158 under the Securities Act.
(k) If at any time during the five-year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in which stockholders’ equity as of the Units are qualified end of and for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor will 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriter relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriter or by dealers to whom Securities may be sold, (vi) the rating agencies in connection with the ratings of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities, including any expenses of the Trustee.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell Units only or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities; provided, however, the Company may, at any time, offer or sell or announce the offering of commercial paper issued in such states the ordinary course of business.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(o) To use its best efforts to do and perform all things required or jurisdictions necessary to be 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 Securities.
(p) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with such restrictions and requirementsany stabilization or manipulation of the price of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company covenants and agrees with the Underwriter that:
(a) The Company will notuse its best efforts to cause the Registration Statement to become effective as promptly as possible, either and will not at any time, whether before or after the Effective Date, file any amendment or supplement to the Registration Statement, (i) which shall not have been previously submitted to, and approved by, the Underwriter or counsel for the Underwriter a reasonable time prior to the Effective Date filing thereof, (ii) to which the Underwriter or thereafter during such period counsel for the Underwriter shall have reasonably objected in writing as not being in compliance with the Act or the Rules and Regulations or (iii) which is not in compliance with the Act or the Rules and Regulations.
(b) The Company will notify the Underwriter, promptly after it shall have received notice of the effectiveness of the Registration Statement or any amendment or supplement thereto, of the receipt of any comments of the Commission with respect thereto, of the time when the Registration Statement or any post-effective amendment thereto has become effective or any supplement to the Prospectus is required by law to be delivered in connection with sales has been filed.
(c) The Company will advise the Underwriter promptly of any request of the Units, file any Commission for an amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for any additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of any judgment, order, injunction or decree preventing or suspending the use of any Preliminary Prospectus or the initiation Prospectus, or of the institution of any proceedings for that purpose or any of such purposes, of which it has knowledge, and will use its best efforts to prevent the threat thereof; (iv) of the happening issuance of any stop order, and, if issued, to obtain as promptly as possible the lifting thereof.
(d) If at any time when a Prospectus relating to the Securities is required to be delivered under the Act, any event that shall have occurred as a result of which, in the judgment opinion of counsel for the Company makes or counsel for the Underwriter, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any statement made in the Registration Statement material fact required to be stated therein or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary at any time to supplement or amend the Prospectus to comply with lawthe Act, the Company will forthwith notify the Underwriter promptly and prepare and duly file with the SEC Commission an appropriate amendment or supplement in accordance with Section 10 of the Act, each such amendment or amendment theretosupplement to be satisfactory to counsel for the Underwriter, and the Company will deliver furnish to the Distributor, without charge, Underwriter copies of such number of copies thereof amendment or supplement as soon as available and in such quantities as the Distributor Underwriter may reasonably request.
5.5 At its own expense(e) Within the time during which the Prospectus is required to be delivered under the Act, or pursuant to the undertakings of the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Company shall provide will comply, at its own expense, with all requirements imposed upon it by the Act, the Rules and Regulations, the 1934 Act or the rules and regulations of the Commission promulgated under the 1934 Act, each as now or hereafter amended or supplemented, and by any order of the Commission so far as necessary to permit the continuance of sales of, or dealings in, the Shares and Warrant Shares.
(f) The Company will furnish to the Distributor in writing Underwriter, without charge, a list signed copy of those states the Registration Statement and other jurisdictions in of any amendment or supplement thereto which has been filed prior to the Units are qualified for saledate of this Agreement, together with restrictions two (2) copies of each exhibit filed therewith, and requirements applicable theretofive (5) conformed copies of such Registration Statement and as many amendments thereto (unsigned and exclusive of exhibits) as the Underwriter may reasonably request. The signed copies of the Registration Statement so furnished to the Underwriter will include signed copies of any and all consents and reports of the independent public auditors as to the financial statements included in the Registration Statement and Prospectus, and signed copies of any and all consents and certificates of any other person whose profession gives authority to statements made by them and who are named in the Registration Statement or Prospectus as having prepared, certified or reviewed any parts thereof.
(g) The Company will deliver to the Underwriter, without charge, (i) prior to the Effective Date, copies of each Preliminary Prospectus filed with the Commission bearing in red ink the statement required by Item 501 of Regulation S-B of the Rules and Regulations; (ii) on and from time to time after the Effective Date, copies of the Prospectus; and (iii) as soon as they are available, and from time to time thereafter, copies of each amended or supplemented Prospectus, and the Distributor number of copies to be delivered in each such case will sell Units only be such as the Underwriter may reasonably request. The Company has consented and hereby consents to the use of each Preliminary Prospectus for the purposes permitted by the Act and the Rules and Regulations. The Company authorizes the Underwriter and dealers to use the Prospectus in connection with the sale of the Shares and the Warrant Shares, for such period as, in the opinion of counsel for the Underwriter, delivery of the Prospectus is required to comply with the applicable provisions of the Act and the Rules and Regulations.
(h) The Company will take such action as may be necessary to qualify the Shares and the Warrant Shares for offer and sale under the blue sky or securities laws of such states or other jurisdictions as is required and as the Underwriter or counsel for the Underwriter may designate (provided that such states or jurisdictions do not require the Company to qualify as a foreign corporation or to file a general consent to service of process) and to continue such qualifications in effect so long as may be required for the purposes of the distribution of the Shares and the Warrant Shares. In each state or jurisdiction where the Company shall qualify the Shares and the Warrant Shares as above provided, the Company will prepare and file such statements or reports as may be required by the laws of such state or jurisdiction, and the Underwriter shall, upon the written request of the Company, supply the Company with all information known to the Underwriter and required to be included in such statements or reports.
(i) During the period of two (2) years from the Effective Date, the Company, at its expense, shall furnish the Underwriter with (i) copies of each annual report of the Company; (ii) as soon as practicable and in compliance any event not later than ninety (90) days after the end of the Company's fiscal year, a financial report of the Company, which will include a balance sheet as of the end of such fiscal year, a statement of operations, a statement of stockholders' equity (deficit) and a statement of cash flows covering such fiscal year, such report being in reasonable detail and audited by independent public auditors; (iii) for each fiscal quarter of the Company other than the last fiscal quarter in any fiscal year, as soon as practicable and in any event not later than forty-five (45) days after the end of each fiscal quarter, a financial report of the Company, which will include a balance sheet as of the end of such fiscal quarter, a statement of operations, a statement of stockholders' equity (deficit) and a statement of cash flows covering such fiscal quarter, together with notes thereto, for such restrictions fiscal quarter and requirementsfor the fiscal year to date, setting forth in each case in comparative form the corresponding figures for the preceding year, such report being in reasonable detail and to fairly present the financial condition of the Company at the date thereof and the results of operations for the period then ending and to have been prepared in accordance with generally accepted accounting principles consistently applied, except for normal year end adjustments; (iv) a copy of any Schedule 13D, 13G, 14D-1, 13E-3 or 13E-4 received or filed by the Company from time to time; (v) a copy of each report or document, including, without limitation, reports on Form 8-K, 10-K (or 10-KSB), 10-Q (or 10-QSB) and exhibits thereto, filed or furnished by the Company, pursuant to the 1934 Act, to the Commission, any Securities Exchange or the NASD on the date each such report or document is so filed or furnished; and (vi) such additional information concerning the business and financial condition of the Company as the Underwriter may from time to time reasonably request.
(j) For a period of three (3) years from the First Closing Date, the Company shall continue to retain Xxxxxxxxx & Company, LLC (or such other nationally recognized accounting firm acceptable to the Underwriter) as the Company's independent certified public accountants, and shall not change such accountants without the Underwriter's prior written consent. For a period of five (5) years from the First Closing Date, the Company shall promptly submit to the Underwriter copies of all accountants' management reports and similar correspondence between the Company and its independent public accountants.
(k) For a period of five (5) years from the First Closing Date, or such shorter period as may be consented to by GunnAllen in writing, the Company, at its expense, shall cause its then independent certified public accountants, as described in Section 4(j) above, to review (but not audit) the Company's financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company's 10-Q (or 10-QSB) quarterly report (or other equivalent report) and the mailing of quarterly financial information to stockholders.
(l) As soon as practicable, but in any event not later than forty five (45) days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), the Company will make generally available to its security holders in accordance with Section 11 (a) of the Act an earnings statement of the Company meeting the requirements of Rule 158(a) under the Act covering a period of at least twelve (12) months beginning after the Effective Date, and advise the Underwriter that such statement has been so made available.
(m) The Company will apply the net proceeds ("Proceeds") it realizes from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus. The Company will provide on a monthly basis a report from its Chief Financial Officer which report shall indicate the use of the proceeds for such monthly period and the Company's expenses and revenues.
(n) The Company, on the First Closing Date, will sell to GunnAllen the Underwriter's Warrants according to the terms specified in Section 2(d) hereof. The Company has reserved and shall continue to reserve a sufficient number of shares of Common Stock for issuance upon exercise of the Underwriter's Warrants.
(o) For the period of three (3) years following the Effective Date, GunnAllen and its successors will have the right to designate a nominee for election, at its or their option, as a non-voting advisor to the Board of Directors of the Company and the Company agrees to use its best efforts to elect to its Board of Directors and continue in office such nominee as an advisor to the Board of Directors. Such advisor shall be entitled to the same cash compensation and reimbursement of expenses as the Company affords its directors who are not also officers or employees of the Company and to receive all copies of all notices and other documents distributed to the members of the Company's Board of Directors (including, but not limited to, any unanimous consents prepared and advance notices of all proposed Board actions or consents), as if such advisor were a member of the Company's Board of Directors. The Company agrees to indemnify and hold such advisor harmless against any and all claims, actions, awards and judgments arising out of his service and in the event the Company maintains a liability insurance policy affording coverage for the acts of its officers and directors, to include such advisor as an insured under such policy. In the event the Company does not have a liability insurance policy in effect on the Effective Date, the Company agrees to use its best efforts to obtain, as promptly as practicable but in any event not later than thirty (30) days following the Effective Date, such a policy in an amount not less than twenty-five (25%) of the gross proceeds of this offering. The rights and benefits of such indemnification and the benefits of such insurance shall, to the extent possible, extend to the Underwriters in so far as it may be, or be alleged to be, responsible for such designee. During such three (3) year period, the Company will cause its Board of Directors to meet, either in person or telephonically, at least four (4) times per year.
(p) For a period of three (3) years from the Effective Date, the Company agrees that it will maintain insurance in full force and effect of the types and in the amounts which are customary for similarly situated companies, including but not limited to, personal injury and product liability insurance and insurance covering all personal property owned or leased by the Company against theft, damage, destruction, acts of vandalism and all other risks customarily insured against.
(q) During the course of the distribution of the Shares, the Company will not take, directly or indirectly, any action designed to or which might, in the future, reasonably be expected to cause or result in stabilization or manipulation of the price of the Shares. During the so-called "quiet period" in which delivery of a Prospectus is required, if applicable, the Company will not issue press releases or engage in any other publicity without the Underwriters' prior written consent.
(r) The Company will use its best efforts, at its cost and expense, to take all necessary and appropriate action to maintain the listing of the Shares and the Warrant Shares on the AMEX or if not qualified for AMEX on NASDAQ and maintain such listing for as long as the Shares and Warrant Shares are so qualified.
(s) In the event that the Company shall receive notice that its securities are no longer qualified for listing on AMEX, the Company shall prepare and file an application for listing in Standard & Poor's Corporation Records Service (including annual report information) or Xxxxx'x Industrial Manual and shall use its best efforts to have the Company listed in such manual and shall maintain such listing for a period of five (5) years from the date on which the Company's securities are delisted from AMEX.
(t) The Company has filed with the Commission a registration statement on Form 8-A and will, concurrently with the Effective Date, register the class of equity securities of which the Shares are a part under Section 12(b) or 12(g) of the 1934 Act. The Company will maintain its registration under the 1934 Act in effect for a period of five (5) years from the Effective Date.
(u) The Company will at all times, from the First Closing Date until at least three (3) years from such date, maintain in full force, or cause to be maintained in full force, from an insurer rated "A" or better (General Policyholders Rating) in the most recent edition of "Best Life Reports", term life insurance in the amount of at least $1,000,000 on the life of Xxxxx X. Xxxxx and Xxxxx X.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Representative, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor may designate. Concurrent required under the Rules and Regulations, to the extent not available on the Commission’s XXXXX system or any successor system, furnish to its stockholders within the time periods required by the Exchange Act and the NGM 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 effectiveness fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the listing of the Shares on the NGM, (vi) any filings required to be made by the Underwriters with FINRA and the fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (vii) the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company shall provide and of the Accountants, (ix) the transfer agent for the Shares, (x) “road show” presentations to prospective purchasers of the Shares (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings), and (xi) all other costs and expenses of the Underwriters incident to the Distributor in writing a list performance of those states their obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other jurisdictions charges of counsel to the Underwriters (in which addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Units are qualified for saleCompany be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $125,000 in the aggregate.
(j) The Company will not at any time, together with restrictions directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(k) The Company will apply the net proceeds from the offering and requirements applicable thereto, sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Distributor Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Xxxxxxx & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock incentive plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement, or pursuant to an employee stock incentive plan approved by the Board of Directors and stockholders of the Company after the date of the Prospectus) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 4(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxxx & Company, LLC waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of Xxxxxxx & Company, LLC, grant options to purchase shares of Common Stock at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company, other than registration statements on Form S-8, without the prior written consent of Xxxxxxx & Company, LLC.
(n) The Company will cause each of its executive officers and directors to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of Xxxxxxx & Company, LLC, sell, contract to sell Units only or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in such states or jurisdictions and in compliance with such restrictions and requirementsSchedule III hereto.
Appears in 1 contract
Samples: Underwriting Agreement (Vitesse Semiconductor Corp)
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the second sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A or Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A or Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., New York time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) Upon request, the Company will furnish to the Representative, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in Part II of the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the reasonable judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, unless a copy of such document has been submitted to the Representative within a reasonable period of time prior to the filing thereof and the Representative shall not have objected thereto in good faith. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representative and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such states as Distributor may designate. Concurrent Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(h) 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 Representative all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Company shall provide Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the Distributor in writing a list listing of those states and other jurisdictions in which the Units are qualified for saleShares on the NGM, together (vi) any filings required to be made by the Underwriters with restrictions and requirements applicable theretoFINRA, and the Distributor reasonable fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (vii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 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) fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided herein) and of the Accountants, (ix) the transfer agent for the Shares, (x) any travel expenses of the Company’s officers, directors and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Shares.
(i) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(j) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Pricing Prospectus and the Prospectus under “Use of Proceeds.”
(k) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Xxxxxxx & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to existing employee stock option, incentive, purchase and other equity plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
(l) During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of Xxxxxxx & Company, LLC; provided, however, that the Company is not required to obtain the prior written consent of Xxxxxxx & Company, LLC to file, or seek to declare effective, a registration statement with the Commission to register for resale “Registrable Securities” as defined in that certain Registration Rights Agreement dated September 14, 2009, between the Company and Bank of America, N.A. in accordance with the terms of such agreement.
(m) The Company will cause each of its executive officers, and directors to, enter into lock-up agreements with the Representative to the effect that it will not, without the prior written consent of Xxxxxxx & Company, LLC, sell, contract to sell Units only in or otherwise dispose of any shares of Common Stock or rights to acquire such states or jurisdictions shares subject to and in compliance accordance with such restrictions and requirementsthe terms set forth in Schedule III hereto.
Appears in 1 contract
Samples: Underwriting Agreement (Bottomline Technologies Inc /De/)
Agreements of the Company. 5.1 The Company agrees with the several Purchasers that:
(a) The Company will not, either prior advise you promptly of any proposal to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment amend or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment Purchased Common Stock, and will furnish you a copy thereof prior to any Registration Statement or Prospectus that may be filed from time to time the filing thereof with the SEC; Commission.
(iiib) The Company will furnish to you copies of the issuance registration statement relating to the Common Stock as originally filed and all amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission), each related prospectus, the Prospectus, and all amendments and supplements to such documents (except supplements relating to Common Stock which is not Purchased Common Stock), in each case as soon as available and in such quantities as you reasonably request for the purposes contemplated by the SEC of Act.
(c) If at any stop order suspending time when a prospectus relating to the effectiveness of Purchased Common Stock is required to be delivered under the Registration Statement Act or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of Rules and Regulations, any event that in the judgment occurs as a result of the Company makes any statement made in the Registration Statement or which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or that requires the making of any changes in the Registration Statement or the Prospectus in order omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor 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 at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company will forthwith promptly notify the Purchasers and promptly prepare and duly file with the SEC Commission an amendment or supplement to the Registration Statement or any appropriate supplement filing pursuant to Section 13 or 14 of the Exchange Act which will correct such statement or omission or an amendment which will effect such compliance, and deliver in connection therewith, such Prospectus or amendments or supplements to the Purchasers in such quantity as may be necessary to permit compliance with the requirements of the Act and the Rules and Regulations, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Purchasers to so notify the Company cancels the Company's obligation under this Section 4(c)), and provided further that any such Prospectus or amendment thereto, or supplement required later than nine months from the date hereof shall be furnished at the Purchasers' sole expense.
(d) The Company will cooperate with the Purchasers in taking such action as may be necessary to qualify the Purchased Common Stock for offering and sale under the securities laws of any state or jurisdiction of the United States as the Purchasers may reasonably request and will deliver use its best efforts to continue such qualification in effect so long as required for the Distributordistribution of the Purchased Common Stock; provided, without chargehowever, that the Company shall not be required to qualify as a foreign corporation, or to file a general consent to service of process, in any such number of copies thereof as state or jurisdic- tion or to comply with any other requirement deemed by the Distributor may reasonably requestCompany to be unduly burdensome.
5.5 At (e) The Company will make generally available to its own expense, security holders as soon as practicable an earning statement (as contemplated by Rule 158 under the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with Act) covering a period of twelve months commencing after the qualification of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness effective date of the Registration Statement.
(f) For a period of three years, the Company will furnish to you copies of any report or definitive proxy statement which the Company shall provide file with the Commission under the Exchange Act, and copies of all reports and communications which shall be sent to stockholders generally, at or about the time such reports and other information are first furnished to stockholders generally.
(g) The Company will apply the net proceeds from the offering of the Purchased Common Stock as set forth under the caption "Use of Proceeds" in the Prospectus Supplement.
(h) If a public offering of the Purchased Common Stock is to be made, the Company will not offer or sell any of its other common stock (other than pursuant to the Distributor Company's dividend reinvestment and stock purchase plan or any employee benefit or other plan in writing a list effect on the date of those states and other jurisdictions in which this Agreement) prior to 120 days after the Units are qualified for sale, together with restrictions and requirements applicable thereto, and Closing Date without the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsconsent of the Purchasers.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the Initial Purchaser as follows:
a. The Company will not, either prior to advise the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4Initial Purchaser promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soit, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, within the period of time referred to in paragraph (ie) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) below, of any request by change in the SEC for amendments Company's condition (financial or supplements to the Registration Statement other), business, prospects, properties, net worth or the Prospectus results of operations, or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company which makes any statement made in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement Offering Memorandum (as then amended or the Prospectus supplemented) 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 Offering Memorandum (vas then amended or supplemented) of receipt by the Company or to comply with any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEClaw.
5.3 b. The Company will comply with all furnish to the provisions Initial Purchaser, without charge, as of any undertakings contained in the Registration Statementdate of the Offering Memorandum, such number of copies of the Offering Memorandum as may then be amended or supplemented as it may reasonably request.
5.4 On c. The Company will not make any amendment or supplement to the Effective DatePreliminary Offering Memorandum or to the Offering Memorandum of which the Initial Purchaser shall not previously have been advised or to which it shall reasonably object after being so advised or file any document which upon filing becomes an Incorporated Document, without delivering a copy of such document to the Initial Purchaser, prior to or concurrently with such filing.
d. Prior to the execution and thereafter from time to timedelivery of this Agreement, the Company will deliver has delivered to the DistributorInitial Purchaser, without charge and charge, in a timely manner, such quantities as many the Initial Purchaser shall have requested copies of the Prospectus Preliminary Offering Memorandum and the Supplement. The Company consents to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the Initial Purchaser and by dealers, prior to the date of the Offering Memorandum, of each Preliminary Offering Memorandum and Supplement so furnished by the Company. The Company consents to the use of the Offering Memorandum (and of any printed supplemental material as amendment or supplement thereto) in accordance with the Distributor securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the Initial Purchaser and by all dealers to whom Securities may reasonably request. If during such period be sold, in connection with the offering and sale of the Securities.
e. If, at any time prior to completion of the distribution of the Securities by the Initial Purchaser to Accredited Investors or Qualified Institutional Buyers, any event shall occur that in the judgment of the Company or in the Distributor opinion of counsel for the Initial Purchaser should be set forth in the Prospectus Offering Memorandum (as then amended or supplemented) in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Offering Memorandum, or to file under the Exchange Act any document which upon filing becomes an Incorporated Document, to comply with any law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment theretothereto or such document, and will deliver expeditiously furnish to the Distributor, without charge, such Initial Purchaser and dealers a reasonable number of copies thereof as thereof. In the Distributor may reasonably requestevent that the Company and the Initial Purchaser agree that the Offering Memorandum should be amended or supplemented, or that a document should be filed under the Exchange Act which upon filing becomes an Incorporated Document, the Company, if requested by the Initial Purchaser, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement or such document.
5.5 At f. The Company will cooperate with the Initial Purchaser and with its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary counsel in connection with the qualification of the Units, the Notes, the Warrants, the Warrant Shares and the Convertible Note Shares for offering and sale by the Initial Purchaser and by dealers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification; provided that compliance with such state securities or Blue Sky law in connection with the offering of the Securities contemplated by this Agreement shall be the responsibility of the Initial Purchaser and provided further 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 service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
g. So long as any of the Units, the Notes or the Warrants are outstanding, the Company will furnish to the Initial Purchaser (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 the Initial Purchaser may request.
h. 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 Initial Purchaser terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Initial Purchaser 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 Initial Purchaser for all out-of-pocket expenses (including fees and expenses of its 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 and subject to the overall limitation on the Company's responsibility to reimburse such expenses set forth in Paragraph 4 of the Letter Agreement dated March 28, 1996 between the Company and the Initial Purchaser (the "Engagement Letter").
i. The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder substantially in accordance with the description set forth in the Offering Memorandum.
j. Without the prior consent of the Initial Purchaser, prior to the expiration of 180 days after the date of the Offering Memorandum the Company will not offer, sell, contract to sell or otherwise dispose of any Common Shares (or any securities convertible into or exercisable or exchangeable for Common Shares) or grant any options or warrants to purchase Common Shares, except for (i) the sale of the Warrants and the Convertible Notes to the Initial Purchaser pursuant to this Agreement and issuances of Common Shares upon the conversion of the Convertible Note and exercise of the Warrants, (ii) grants of options pursuant to the Company's Stock Option Plan, and (iii) issuances of Common Shares upon exercise of options and warrants outstanding at the date hereof or issued in accordance with the foregoing clause (ii). The Company has caused or will cause each of its current directors and executive officers to furnish a letter or letters, in form and substance satisfactory to the Initial Purchaser, pursuant to which each such person shall agree not to offer, sell, contract to sell or otherwise dispose of any Common Shares (or any securities convertible into or exercisable or exchangeable for Common Shares) for a period of 180 days after the date of the Offering Memorandum without the prior written consent of the Initial Purchaser.
k. Except as stated in this Agreement and in the Preliminary Offering Memorandum, the Supplement and the Offering Memorandum, 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 Units to facilitate the sale or resale of the Securities. Except as permitted by the Act, the Company will not distribute any offering material in connection with the Exempt Resales.
l. The Company will use its best efforts to cause the Units, Notes and Warrants to be eligible for trading on The PORTAL Market.
m. From and after the Closing Date, so long as any of the Units, Notes, Warrants, Warrant Shares and Convertible Note Shares are outstanding and are "Restricted Securities" within the meaning of the Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing Date, and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will furnish to holders of the Units, Notes and Warrants and prospective purchasers of Units, Notes and Warrants designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in connection with resale of the Units, Notes and Warrants.
n. The Company has complied and will comply with all provisions of Florida Statutes Section 517.075 relating to issuers doing business with Cuba.
o. The Company agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in such states respect of any security (as Distributor may designate. Concurrent defined in the Act) that would be integrated with the effectiveness sale of the Securities in a manner that would require the registration under the Act of the sale to the Initial Purchaser or the Qualified Institutional Buyers of the Securities.
p. The Company agrees to comply with all of the terms and conditions of the Registration StatementRights Agreement, the Warrant Agreement and all agreements set forth in the representation letters of the Company shall provide to DTC relating to the Distributor approval of the Units, Notes and Warrants by DTC for "book entry" transfer.
q. The Company agrees that prior to any registration of the Notes pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the Indenture shall be qualified under the Trust Indenture Act of 1939
r. The Company agrees that prior to the Closing it will cause PMT to transfer all of PMT's interest in writing a list of those states and other jurisdictions in which the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsPeterStar to NWE Cyprus.
Appears in 1 contract
Samples: Purchase Agreement (PLD Telekom Inc)
Agreements of the Company. 5.1 The Company will notagrees with the several ------------------------- Managers as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any amendment or supplement to it is necessary for the Registration Statement or a post-effective amendment thereto or any Rule 462(b) Registration Statement to be declared effective before the Prospectusoffering of the Shares may commence, whether pursuant the Company will endeavor to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4will advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-such post- effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, any Prepricing Prospectus or the Prospectus Prospectuses or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus Prospectuses (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements thereintherein not misleading, in light or of the circumstances in which they are madenecessity to amend or supplement the Prospectuses (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, not misleading; the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge (i) six 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, and of any Rule 462(b) Registration Statement and any amendment 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, and of any Rule 462(b) Registration Statement and any amendment thereto, as you may reasonably request, and (viv) of receipt by the Company or any representative or attorney six copies of the Company of any other communication from the SEC relating exhibits to the Company, Incorporated Documents.
(d) The Company will not file any amendment to the Registration Statement, any preliminary prospectusRule 462(b) Registration Statement or amendment thereto, or make any amendment or supplement to the Prospectuses or, prior to the end of the period of time referred to in the first sentence in subsection (f) below, file any document which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object.
(e) Prior to the execution and delivery of this Agreement, the Company has delivered to you, without charge, in such quantities as you have requested, copies of each form of the International Prepricing Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply consents to the use, in accordance with all the provisions of any undertakings contained the Act and with the securities laws of the jurisdictions in which the Registration StatementShares 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.
5.4 On (f) As soon after the Effective Date, execution and delivery of this Agreement as possible and thereafter from time to timetime for such period as in the opinion of counsel for the Managers a prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer, the Company will expeditiously deliver to the Distributoreach Manager and each dealer, without charge and in a timely mannercharge, as many copies of the International Prospectus (and of any printed supplemental material amendment or supplement thereto) as the Distributor 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 with the securities laws of the jurisdictions in which the Shares are offered by the several Managers and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the International Prospectus is required by the Act to be delivered in connection with sales by any Manager or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the Distributor should opinion of counsel for the Managers is required to be set forth in the International Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the International Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Managers and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Lead Managers for the Distributor 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 proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Managers in connection with the registration or qualification of the Shares for offering and sale by the several Managers and by dealers under the securities laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering the period specified by Section 11(a) of the Act and Rule 158 thereunder, as soon as reasonably practicable, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(i) During the period of five years hereafter, the Company will furnish to you (i) upon your request, at such address as you may specify, 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.
5.5 At its own expense(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 Stockholders to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to prepare, execute, reimburse the Lead Managers for all out-of-pocket expenses (including reasonable fees and file any and all documents and to take all actions that may be reasonably necessary expenses of counsel for the Managers) incurred by you in connection with the qualification herewith.
(k) If Rule 430A of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration StatementAct is employed, the Company shall provide 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) Except as provided in this Agreement, the Company will not sell, contract to sell or otherwise dispose of any Common Stock (except shares issued upon exercises of options outstanding under the Company's 1992 stock option plan or upon exercise of outstanding warrants) or any securities convertible into or exercisable or exchangeable for Common Stock, or grant any options (except any options granted under the Company's 1992 stock option plan) or warrants to purchase Common Stock, for a period of 90 days after the date of the International Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.
(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 listed on Schedule III hereto.
(n) Except as stated in this 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.
(o) The Company will use all reasonable efforts to satisfy on or before the Closing Date all conditions to the Distributor in writing a list of those states and other jurisdictions in which Managers' obligations to purchase the Units are qualified for sale, together with restrictions and requirements applicable thereto, and the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsShares.
Appears in 1 contract
Samples: International Underwriting Agreement (Furniture Brands International Inc)
Agreements of the Company. 5.1 The Company will notagrees with the Forward Sellers, either prior the Forward Counterparties and the Underwriters:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(5) not later than the Effective second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters or counsel for the Forward Sellers, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or a dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives and the Forward Sellers for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives and the Forward Sellers of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof Underwriters and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated Forward Sellers and to propose from time to time such amendment or dealers, amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, in the opinion Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Distributor's counselRepresentatives and the Forward Sellers, it will not make, any offer relating to the Securities that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives and the Forward Sellers shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives and the Forward Sellers is hereinafter referred to as a written request from Distributor “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to do soany Permitted Free Writing Prospectus, Distributor mayincluding in respect of timely filing with the Commission, at its optionlegending and record keeping. The Company and the Forward Sellers consent to the use by any Underwriter of (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, terminate this Agreement(ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) information describing the preliminary terms of the Securities or their offering.
5.2 The Company will notify (e) To advise the Distributor promptlyRepresentatives and the Forward Sellers promptly and, and will if requested by a Representative or a Forward Seller, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon the Representatives’ or the Forward Sellers’ reasonable request, any representative amendment or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Securities by the Underwriters, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company shall provide will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) To furnish to each Underwriter or Forward Seller, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to each Underwriter or Forward Seller such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as such Underwriter or Forward Seller may reasonably request.
(g) During the Prospectus Delivery Period, to furnish to each Underwriter, Forward Seller and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter, Forward Seller or dealer may reasonably request.
(h) If immediately prior to the Distributor third anniversary of May 8, 2009 (such third anniversary, the “Renewal Deadline”) any of the Securities remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline, promptly notify the Representatives and the Forward Sellers and file, if it has not already done so and is eligible to do so, an automatic shelf registration statement (as defined in writing Rule 405 of the Securities Act) relating to the Securities, in a list form satisfactory to the Representatives and the Forward Sellers. If at the Renewal Deadline any of the Securities remain unsold by the Underwriters and the Company is not eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, promptly notify the Representatives and the Forward Sellers and file a new shelf registration statement or post-effective amendment on the proper form relating to the Securities in a form satisfactory to the Representatives and the Forward Sellers, and will use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable after the Renewal Deadline and promptly notify the Representatives and the Forward Sellers of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating thereto. References herein to “Registration Statement” shall include such automatic shelf registration statement or such new shelf registration statement or post-effective amendment, as the case may be.
(i) Prior to any public offering of the Shares and any Option Shares, to cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions as the Representatives may request, to continue such qualification in effect so long as required for distribution of the Securities 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 that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to service of process in suits other than those states arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(j) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and other jurisdictions Rule 158 under the Securities Act.
(k) If at any time during the five year period after the date of this Agreement, or, in which the Units are qualified case of the Forward Sellers, until the expiration or termination of the Forward Agreements, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the record holders of its Securities a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in stockholders’ equity as of the end of and for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor 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.
(l) To pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) 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 fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (vi) the preparation, issuance, execution and delivery of the Securities and (vii) the fees and expenses of any transfer agent or registrar in connection with the Securities.
(m) To apply the net proceeds from the sale of the Additional Company Shares and Option Shares or from the settlement of the Forward Agreements, as the case may be, in the manner described under the caption “Use of Proceeds” in the Prospectus.
(n) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date and any Option Closing Date and to satisfy all conditions precedent to the delivery of the Securities.
(o) For the period ending 75 days after the date of the Prospectus, the Company will not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell Units only any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) 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 states transaction described in clause (i) or jurisdictions (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Representatives, other than (v) the Securities to be sold hereunder, as well as any Additional Company Shares and any Option Shares, (w) the issuance of shares of Common Stock upon the exercise of an option or warrant or conversion of a security outstanding on the date of this Agreement, (x) grants and issuances of shares of Common Stock, options to acquire Common Stock or other derivative securities pursuant to stock-based compensation or incentive plans of the Company, (y) the issuance of shares of Common Stock pursuant to the Company’s dividend reinvestment plans or employee stock purchase plans, and (z) the issuance, offer or sale of a Tier 1 instrument.
(p) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with any stabilization or manipulation of the price of the Securities.
(q) To use its best efforts to list, subject to notice of issuance, (i) the Shares (if any) to be issued pursuant to Physical Settlement or Net Share Settlement (as each such restrictions term is defined in the Forward Agreements) of each Forward Agreement and requirements(ii) the Additional Company Shares (if any) and any Option Shares, on the New York Stock Exchange (“NYSE”) and to maintain each such listing.
(r) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company will notagrees with the several Underwriters as follows:
(a) If, either prior to at the Effective Date or thereafter during such period as the Prospectus time this Agreement is required by law to be delivered in connection with sales of the Unitsexecuted and delivered, file any amendment or supplement to it is necessary for the Registration Statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the Prospectusoffering of the Shares may commence, whether pursuant the Company will endeavor to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4will advise you promptly and, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt requested by the Company of a written request from Distributor to do soyou, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any such post-effective amendment thereto becomes has become effective; .
(iib) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the SEC Commission for amendments amendment of, or supplements to a supplement to, the Registration Statement Statement, any Prepricing Prospectus or the Prospectus Prospectus, or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings proceeding for that purpose such purpose; and (iii) within the period of time referred to in paragraph (f) below, of any change in the Company's condition (financial or the threat thereof; (iv) other), business, prospects, properties, net worth or results of operations, or of the happening of any event that in the judgment of the Company event, which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue (as then amended or that 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 thereintherein not misleading, in light or of the circumstances in which they are made, not misleading; and necessity to amend or supplement the Prospectus (vas then amended or supplemented) of receipt by to comply with the Company Act or any representative or attorney other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes Company will make every reasonable effort to obtain the withdrawal of this section, informal requests by or acts of such order at the SEC staff shall not be deemed actions of or requests by the SECearliest possible time.
5.3 (c) The Company will comply 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) 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 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 of each Prepricing Prospectus so furnished by the Company, in accordance with the provisions of any undertakings contained the Act and with the securities or Blue Sky laws of the jurisdictions in which the Registration StatementShares are offered by the several Underwriters and by dealers to whom Shares may be sold, prior to the date of the Prospectus.
5.4 On (f) As soon after the Effective Dateexecution and delivery of this Agreement as possible, and thereafter from time to timetime 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 of Shares by any Underwriter or dealer, the Company will expeditiously deliver to the Distributoreach Underwriter and each dealer, without charge and in a timely mannercharge, as many copies of the Prospectus (and of any printed supplemental material 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 Distributor may reasonably requestProspectus 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 that, in the judgment of the Company Company, or in the Distributor should reasonable opinion of counsel for the Underwriters, is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary to supplement or amend the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will forthwith prepare and duly and, subject to the provisions of paragraph (d) above, file with the SEC Commission an appropriate supplement or amendment theretothereto (or to such document), and will deliver expeditiously furnish to the Distributor, without charge, such Underwriters and dealers a reasonable number of copies thereof thereof. In the event that the Company and you, as Representatives of the Distributor 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 disclosing the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate, and will file such consents to service of process or other documents necessary or appropriate 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 service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request.
5.5 At its own expense(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 Shareholder to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to prepare, execute, reimburse the Representatives for all out-of-pocket expenses (including all fees and file any and all documents and to take all actions that may be reasonably necessary 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 qualification description set forth in the Prospectus.
(l) If Rule 430A of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness of the Registration StatementAct is employed, the Company shall provide 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, and except for the issuance of shares and options pursuant to the Distributor Company's 1994 Long Term Incentive Plan and/or 1996 Long-Term Incentive Plan, 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 180 days after the date of the Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.
(n) The Company has furnished or will furnish to you "lock-up" letters, in writing a list form and substance satisfactory to you, signed by each of those states the Company's current officers and other jurisdictions directors and each of its stockholders designated by you.
(o) Except as stated in which this Agreement and in the Units are qualified for salePrepricing Prospectus and Prospectus, together with restrictions and requirements applicable theretothe 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 have the Common Stock registered under the Exchange Act and the Distributor will sell Units only in such states Shares listed, subject to notice of issuance, on the Nasdaq National Market on or jurisdictions and in compliance with such restrictions and requirementsbefore the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (International Speedway Corp)
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A or Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A or Rule 430B and notify the Representative promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to each Representative, without charge, one signed copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentative, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as the Representative may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Shares may reasonably requestbe sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representative may reasonably request.
5.5 At its own expense, the . The Company agrees to prepare, execute, and will not file any document under the Exchange Act or the Exchange Act Rules and all documents and Regulations before the termination of the offering of the Shares by the Underwriters, if such document would be deemed to take all actions be incorporated by reference into the Prospectus, that may be reasonably necessary in connection is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the qualification of the Units for sale information contained in such states as Distributor may designate. Concurrent with the effectiveness of the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company shall provide will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Shares, the Company will cooperate with the Representative and counsel to the Distributor Underwriters in writing connection with the registration or qualification of the Shares for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions as the Representative may request; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a list balance sheet and statements of those states income, stockholders’ equity and other jurisdictions cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Units are qualified for sale, together with restrictions and requirements applicable thereto, and Effective Date that will satisfy the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirements.provisions of Section 11(a) of the Act (including Rule 158 of the Rules
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with each Underwriter as follows:
(a) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsOffered ADSs by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement Statement, the Base Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representative within a reasonable period of time prior to the filing thereof and the Distributor Representative shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (b) The Company will notify the Distributor Representative promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(e) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430B and notify the Underwriters promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests by 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 acts give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) The Company will furnish to the Underwriters, without charge, a copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECUnderwriters, without charge, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (e) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to the Distributoreach Underwriter, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any printed supplemental material as amendment or supplement thereto by the Distributor Underwriters and by all dealers to whom the Offered ADSs may reasonably requestbe sold, both in connection with the offering or sale of the Offered ADSs and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Distributoreach Underwriter, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor each Underwriter may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act or the Exchange Act Rules and Regulations before the termination of the offering of the Offered ADSs by the Underwriters, if such document would be deemed to be incorporated by reference into the Prospectus, that is not approved by the Representative after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify the Representative and, if requested by the Representative, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(f) Prior to any public offering of the Offered ADSs, the Company agrees will cooperate with the Underwriters and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Offered ADSs for offer and sale under the Blue Sky laws of such jurisdictions as the Underwriters may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants).
(h) The Company will make generally available to holders of its securities as soon as may designate. Concurrent be practicable an earnings statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Underwriters all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the effectiveness transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Pricing Prospectus, the Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement to any of the foregoing, (ii) the preparation and delivery of any certificates representing the Offered ADSs, (iii) the printing of this Agreement, if applicable, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Base Prospectus, the Prospectus Supplement, the Prospectus, and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered ADSs by the Underwriters or by dealers to whom Offered ADSs may be sold, (v) the listing of the Underlying Shares and the Offered ADSs on the NASDAQ, (vi) any filings required to be made in connection with clearance of the offering of the Offered ADSs with FINRA (including the fees, disbursements and other charges of counsel for the Underwriters in connection therewith), (vii) the registration or qualification of the Offered ADSs for offer and sale under the state or foreign securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(f) and the preparation, printing and distribution of any Blue Sky memoranda or foreign jurisdiction offering wraps or memoranda (including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith), (viii) fees, disbursements and other charges of counsel to the Company shall provide and of the Accountants, (ix) the transfer agent for the ADSs, (x) “road show” presentations to prospective purchasers of the Offered ADSs (including any travel expenses of the Company’s officers, directors and employees in connection with attending or hosting meetings, but not including travel expenses for employees of the Underwriters), and (xi) all other costs and expenses of the Underwriters incident to the Distributor in writing a list performance of those states its obligations hereunder not otherwise specifically provided for herein, including the fees, disbursements and other jurisdictions charges of counsel to the Underwriters (in which addition to those set forth in clauses (vi) and (vii)); provided, however, that in no event under this clause (xi) shall the Units are qualified for saleCompany be required to pay or reimburse if paid by the Underwriters any costs and expenses in excess of $50,000 in the aggregate.
(j) The Company will not at any time, together with restrictions directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the Ordinary Shares or ADSs to facilitate the sale or resale of any of the Offered ADSs.
(k) The Company will apply the net proceeds from the offering and requirements applicable thereto, sale of the Offered ADSs to be sold by the Company in the manner set forth in the Pricing Prospectus and the Distributor Prospectus under “Use of Proceeds.”
(l) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of the Representative, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company, including Ordinary Shares and ADSs, or any other securities convertible into or exchangeable for its Ordinary Shares, ADSs or other equity security (other than grants of free share awards pursuant to employee free share plans to the Company’s employees and directors, pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of any equity securities of the Company, including Ordinary Shares and ADSs, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares, ADSs or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless the Representative waives, in writing, such extension.
(m) During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Representative, other than registration statements on Form S-8.
(n) The Company will cause each of its executive officers and directors to enter into lock-up agreements with the Representative to the effect that they will not, without the prior written consent of the Representative, sell, contract to sell Units only or otherwise dispose of any ADSs or Ordinary Shares or rights to acquire such shares according to the terms set forth in Schedule V hereto.
(o) The Company will use its best efforts to cause the Offered ADSs to be listed on the NASDAQ and to maintain such states or jurisdictions and in compliance with such restrictions and requirementslisting on the NASDAQ.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notagrees with you and, either prior only to the Effective extent reference is made to the Selling Stockholder in this Section 5, with the Selling Stockholder:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b)(7) not later than the second business day following the execution and delivery of this Agreement.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or thereafter during such period date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of by an Underwriter or a dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the Units“Prospectus Delivery Period”), file prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives and the Selling Stockholder for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the opinion of the Representatives it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representatives and the Selling Stockholder of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or the Prospectus, whether pursuant any new registration statement be declared effective) and furnish at its own expense to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof Underwriters and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated Selling Stockholder and to propose from time to time such amendment or dealers, amendments to the Registration Statement and such supplement or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus asas so amended or supplemented, in the light of future developmentsthe circumstances then prevailing or under which they were made, maynot misleading or so that the Registration Statement, in the opinion Disclosure Package or the Prospectus, as amended or supplemented, will comply with law.
(d) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Distributor's counselRepresentatives and the Selling Stockholder, it will not make, any offer relating to the Shares that would constitute an issuer free writing prospectus as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act) required to be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives and the Selling Stockholder is hereinafter referred to as a written request from Distributor “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to do soany Permitted Free Writing Prospectus, Distributor mayincluding in respect of timely filing with the Commission, at its optionlegending and record keeping. The Company consents to the use by any Underwriter of (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by reference) in the Prospectus or a previously filed Issuer Free Writing Prospectus, terminate this Agreement(ii) any Issuer Free Writing Prospectus listed on Schedule II hereto, or (iii) information describing the preliminary terms of the Shares or their offering.
5.2 The Company will notify (e) To advise you and the Distributor promptlySelling Stockholder promptly and, and will if requested by you, to confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement Prospectus or the Prospectus Disclosure Package or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iiiii) of the issuance by the SEC 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 initiation of any proceedings proceeding for that purpose or the threat thereof; such purposes, and (iviii) of the happening of any event that in during the judgment of the Company Prospectus Delivery Period which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or that which requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, therein not misleading; . To prepare and (v) of receipt by file with the Company Commission, promptly upon your or the Selling Stockholder’s reasonable request, any representative amendment or attorney of the Company of any other communication from the SEC relating supplement to the Company, the Registration Statement, any preliminary prospectusthe Base Prospectus, the Prospectus Supplement, the Prospectus or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under Disclosure Package 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 SEC an appropriate supplement or amendment thereto, and will deliver to the Distributor, without charge, such number of copies thereof as the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary or advisable in connection with the qualification distribution of the Units for sale in Shares by you, and to use its best efforts to cause any such states as Distributor may designatepost-effective amendment to the Registration Statement to become promptly effective. Concurrent with If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(f) To furnish to you and the Selling Stockholder, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to you 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.
(g) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus, the Prospectus Supplement and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(h) 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 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 that in no event shall provide the Company be obligated to qualify to do business in any jurisdiction where it is not so qualified or take any action that would subject it to 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.
(i) To make generally available to its security holders as soon as reasonably practicable an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(j) If at any time during the five year period after the date of this Agreement, the Company ceases to file reports with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, (i) to mail as soon as reasonably practicable after the end of each fiscal year to the Distributor record holders of the Shares a financial report of the Company and its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in writing a list stockholders’ equity as of those states the end of and other jurisdictions in which the Units are qualified for salesuch fiscal year, together with restrictions comparable information as of the end of and requirements applicable theretofor the preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as reasonably practicable after the Distributor 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 pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Base Prospectus and the Prospectus Supplement, each preliminary pricing supplement and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states (including in each case the fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) the listing of the Shares with the New York Stock Exchange (the “NYSE”), (v) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (vi) furnishing such copies of the Registration Statement, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, and (vii) the fees and expenses of any transfer agent or registrar in connection with the Shares.
(l) To use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Shares.
(m) For the period ending 60 days after the date of the Prospectus, the Company will not (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell Units only any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) 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 states transaction described in clause (i) or jurisdictions (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Representatives, other than (v) the Shares to be sold hereunder, (w) the issuance of shares of Common Stock upon the exercise of an option or warrant or conversion of a security outstanding on the date of this Agreement, (x) grants and issuances of shares of Common Stock, options to acquire Common Stock or other derivative securities pursuant to stock-based compensation or incentive plans of the Company, (y) the issuance of shares of Common Stock pursuant to the Company’s dividend reinvestment plans or employee stock purchase plans, and (z) the issuance, offer or sale of a Tier 1 instrument.
(n) Not to take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in compliance with such restrictions and requirementsany stabilization or manipulation of the price of the Shares.
(o) To use its best efforts to maintain the listing of the Shares on the NYSE.
(p) To maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements of the Company. 5.1 The Company covenants and agrees with the Placement Agent as follows:
(a) The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares, file any amendment or supplement to the Registration Statement Statement, any Issuer Free Writing Prospectus or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Placement Agent within a reasonable period of time prior to the filing thereof (to the extent practicable) and the Distributor Placement Agent shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to .
(b) Until the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion earlier of the Distributor's counsel, be necessary completion of the offering contemplated by this Agreement or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company termination of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The , the Company will notify the Distributor Placement Agent promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto to the Registration Statement becomes effective; , (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the 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 Statement, any Issuer Free Writing Prospectus or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, prospectus or the Prospectus or any Issuer Free Writing Prospectus. For purposes Upon the Placement Agent’s request, prepare and furnish as many copies as the Placement Agent may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct any misstatements or omissions. If at any time the SEC shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the SEC pursuant to said Rule 430A and notify the Placement Agent promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the 1933 Act, the Company shall file a registration statement under Rule 462(b) with the SEC in compliance with Rule 462(b) by 10:00 P.M., Eastern Standard Time, on the date of this sectionAgreement, informal requests and the Company shall at the time of filing either pay to the SEC the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations.
(c) If requested by or acts the Placement Agent, the Company will furnish to the Placement Agent, without charge, a copy of one signed copy of each of the SEC staff shall not be deemed actions of Registration Statement and any pre-or requests by the SECpost-effective amendment thereto, including financial statements and schedules, and all exhibits thereto.
5.3 (d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from (e) From time to time, the Company will deliver to the DistributorPlacement Agent, without charge and in a timely mannercharge, as many copies of the Prospectus and or any printed supplemental material amendment or supplement thereto as the Distributor Placement Agent may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Placement Agent, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Placement Agent should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver to the DistributorPlacement Agent, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Placement Agent may reasonably request.
5.5 At its own expense(f) Prior to any public offering of the Shares, the Company agrees will cooperate with the Placement Agent and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Placement Agent in connection with the registration or qualification of the Units Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Placement Agent may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as Distributor may designate. Concurrent required under the Rules and Regulations, furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flow of the Company and its consolidated subsidiary(ies), 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 effectiveness fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiary(ies), if any, for such quarter in reasonable detail.
(h) During the period of two years commencing on the date hereof, if requested by the Placement Agent, the Company shall provide will furnish to the Distributor in writing a list Placement Agent copies of those states such financial statements and other jurisdictions in which periodic and special reports as the Units are qualified for sale, together with restrictions and requirements applicable theretoCompany may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Distributor Placement Agent a copy of each annual or other report it shall be required to file with the SEC, the Principal Market, the National Association of Securities Dealers, Inc. (the “NASD”) or any national securities exchange on which any class of securities of the Company is listed.
(i) If required by the Rules and Regulations, the Company will sell Units only make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the 1933 Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such states or jurisdictions and in compliance with Effective Date, except that if such restrictions and requirementsfourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
Appears in 1 contract
Agreements of the Company. 5.1 The Company will notcovenants and agrees with the Underwriter:
(a) To use its best efforts to cause the Registration Statement to become effective if, either at the time this Agreement is executed, the Registration Statement has not yet been declared effective by the Commission; to file such Prospectus pursuant to Rule 424(b) under the Act not later than the close of business on the second business day following the execution and delivery of this Agreement, or if applicable, such earlier times as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus prior to the Effective Closing Date or the Option Closing Date, as the case may be, which shall not previously have been submitted to the Underwriter a reasonable time prior to the proposed filing or which shall be disapproved by the Underwriter promptly after reasonable notice by the Company of its proposed filing or which is not in compliance with the Act and the Rules and Regulations; to advise the Underwriter, promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, has been filed or becomes effective, or any supplement to the Prospectus or any amended Prospectus has been filed, and to furnish the Underwriter copies thereof; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for any such purpose, or any request by the Commission for the amending or supplementing of the Registration Statement, or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification, to use promptly its best efforts to obtain the withdrawal of such order at the earliest possible time;
(b) Promptly from time to time to take such action as the Underwriter reasonably may request to qualify the Shares for offering and sale under the state securities or "Blue Sky" laws of such jurisdictions as the Underwriter may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution 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 qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction in which it is not currently so subject;
(c) Promptly to furnish to the Underwriter, without charge, two signed copies of the Registration Statement and 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 in the Registration Statement);
(d) To furnish the Underwriter with copies of the Prospectus or any amendment or supplement thereto in such quantities as the Underwriter may from time to time request. The Company consents to the use of the 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 such period as which the Prospectus is required by law to be delivered in connection with sales therewith. If the delivery of the Units, file Prospectus is required at any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and expiration of nine months after the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion issue of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof; (iv) of the happening of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make connection with the statements therein, in light offering or sale of the circumstances in which they are made, not misleading; Shares and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during if at such period of time any event shall occur that which in the judgment of the Company or counsel to the Distributor Company should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith shall immediately prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the DistributorUnderwriter, without charge, such number of copies thereof as may be reasonably requested. In case the Distributor 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 the Underwriter's request but at the expense of the Underwriter the Company will prepare and deliver to the Underwriter as many copies as the Underwriter 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 Effective Date), summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the Effective Date, to furnish to the Underwriter copies of all reports or other communications (financial or other) furnished to shareholders of the Company, and deliver to the Underwriter (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 the Underwriter may from time to time reasonably request.;
5.5 At its own expense(h) To apply, and to cause the Bank 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 the provisions of its undertakings contained in the Registration Statement;
(j) That the Company agrees will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected, to preparecause or result in, executeor which will constitute, stabilization of the price of the shares of any of its securities to facilitate the sale or resale of any of the Shares;
(k) 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 file any and all documents and to take all actions that may be reasonably necessary in connection 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.
(l) That the Company will, and will cause each of its directors and officers to enter into agreements with the qualification Underwriter substantially in the form attached as Annex I hereto to the effect that they will not, for a period of 180 days after the commencement of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness offering of the Registration StatementShares, without the Company shall provide to the Distributor in writing a list of those states and other jurisdictions in which the Units are qualified Underwriter's prior written consent, offer for sale, together sell, contract to sell, grant any rights in, or otherwise dispose of, directly or indirectly, any shares of Common Stock (or any securities convertible into or exchangeable for any shares of Common Stock), or file a registration statement under the Act with restrictions respect to any such stock or rights to acquire such stock, except as contemplated in the Prospectus.
(m) That any options or warrants to purchase capital stock issued by the Company during the first 12 months following the Closing Date shall be issued with an exercise price no less than the greater of (a) $10 per share and requirements applicable thereto(b) the closing market price per share for the capital stock (as quoted on the OTC Bulletin Board or other quotation service, and medium or exchange, as applicable) on the Distributor date of grant of the option or warrant.
(n) That the aggregate total of warrants to purchase shares of common stock issued to the Named Investors will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsnot exceed 202,000.
Appears in 1 contract
Agreements of the Company. 5.1 The Company agrees with the Underwriter as follows:
(a) The Company will notprepare 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 Underwriter, either prior the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the Effective Date or thereafter during selling concessions and reallowances, if any, and such period other information as the Prospectus is required by law to be delivered Underwriter and the Company deem appropriate in connection with sales the offering of the UnitsNotes, and the Company will timely file any amendment or such supplement to the Registration Statement or prospectus with the Prospectus, whether SEC pursuant to Rule 424(b) under the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to but the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall Company will not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or file any amendments to the Registration Statement and such supplement as in effect with respect to the Notes or any amendments or supplements to the Prospectus asProspectus, in unless it shall first have delivered copies of such amendments or supplements to the light of future developmentsUnderwriter, may, in the opinion of the Distributor's counsel, be necessary with reasonable opportunity to comment on such proposed amendment or advisable. Subject to Section 5.4, supplement or if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days Underwriter shall have reasonably objected thereto promptly after receipt by thereof; the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify immediately advise the Distributor promptly, and will confirm such advice in writing, Underwriter or the Underwriter's counsel (i) when notice is received from the Registration Statement has been amended or supplemented and when SEC that any post-effective amendment thereto becomes effective; to the Registration Statement has become or will become effective and (ii) of any request by order or communication suspending or preventing, or threatening to suspend or prevent, the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, offer and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) sale of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement Notes or the initiation of any proceedings for or examinations that purpose may lead to such an order or the threat thereof; (iv) communication, whether by or of the happening SEC or any authority administering any state securities or Blue Sky law, as soon as the Company is advised thereof, and will use its best efforts to prevent the issuance of any event that in the judgment of the Company makes such order or communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any statement made in the Registration Statement or time when the Prospectus untrue or that requires relating to the making Notes is required to be delivered under the Act, any event occurs as a result of any changes in the Registration Statement or which the Prospectus in order as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, any preliminary prospectus, or the Prospectus. For purposes of this section, informal requests by or acts of the SEC staff shall not be deemed actions of or requests by the SEC.
5.3 The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective Date, and thereafter from time to time, the Company will deliver to the Distributor, without charge and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably request. If during such period of time any event shall occur that in the judgment of the Company or the Distributor should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was they were made, not misleading, or if it is necessary at any time to amend or supplement or amend the Prospectus to comply with lawthe Act or the Rules and Regulations, the Company promptly will forthwith notify the Underwriter of such event and will promptly prepare and duly file with the SEC, at its own expense, an amendment or supplement to such Prospectus that will correct such statement or omission or an amendment that will effect such compliance. Neither the Underwriter's consent to, nor the Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(c) The Company will immediately inform the Underwriter (i) of the receipt by the Company of any communication from the SEC an appropriate supplement or amendment thereto, any state securities authority concerning the offering or sale of the Notes and will deliver (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the Distributoroffering or sale of the Notes.
(d) The Company will furnish to the Underwriter, without charge, copies of the Registration Statement (including all documents and exhibits thereto or incorporated by reference therein), the Prospectus, and all amendments and supplements to such number of copies thereof documents relating to the Notes, in each case in such quantities as the Distributor Underwriter may reasonably request.
5.5 At (e) No amendment or supplement will be made to the Registration Statement or Prospectus which the Underwriter shall not previously have been advised or to which it shall reasonably object after being so advised.
(f) The Company will cooperate with the Underwriter and with its own expensecounsel in connection with the qualification of, or procurement of exemptions with respect to, the Notes for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriter may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such qualification or exemptions; 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 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.
(g) The Company consents to the use, in accordance with the securities or Blue Sky laws of such jurisdictions in which the Notes are offered by the Underwriter and by dealers, of the Prospectus furnished by the Company.
(h) To the extent, if any, that the rating or ratings provided with respect to the Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of 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 Underwriter (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 Underwriter 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 Underwriter terminating this Agreement pursuant to Section 8 or 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 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 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 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 Notes to facilitate the sale or resale of the Notes.
(m) For a period from the date of this Agreement until the retirement of the Notes, the Company will deliver to you the annual statements of compliance and the annual independent certified public accountants' reports furnished to the Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Xxxxnced Eligible Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Financed Xxxgible Loans to show the absolute ownership by the Trustee, as eligible lender of, and the interest of the Company in, the initial Financed Eligible Loans, and from and after each Closing Date the Company will take, or cause the Servicer, SLC and SLC Receivables to take, as the case may be, such actions with respect to the respective records of each with regard to any additional acquired Eligible 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 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 hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriter, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company.
(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, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection or transmit for filing with the qualification Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the Units for sale in such states as Distributor may designate. Concurrent with date of this Agreement, the effectiveness 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 effective date of the Registration Statement, (ii) the Company shall provide effective date of the most recent post-effective amendment to the Distributor in writing a list Registration Statement to become effective prior to the date of those states this Agreement and other jurisdictions in (iii) the date of the Company's most recent Annual Report or Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the Units are qualified for sale, together with restrictions and requirements applicable thereto, and provisions of Section 11(a) of the Distributor will sell Units only in such states or jurisdictions and in compliance with such restrictions and requirementsAct.
Appears in 1 contract
Samples: Underwriting Agreement (SLC Student Loan Receivables I Inc)
Agreements of the Company. 5.1 The Company covenants and agrees with the Underwriter that:
(a) If any information shall have been omitted from the Registration Statement in reliance upon Rule 430A, the Company, at the earliest possible time, will furnish the Underwriter with a copy of the Prospectus to be filed by the Company with the Commission to comply with Rule 424(b) and Rule 430A under the Act, and, if the Underwriter does not object to the contents thereof, will file such Prospectus with the Commission in compliance with such Rules and Regulations. Upon compliance with such Rules and Regulations, the Company will so advise the Underwriter promptly. The Company will not, either prior advise the Underwriter and counsel to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Units, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor within a reasonable period of time prior to the filing thereof and the Distributor shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 The Company will notify the Distributor promptly, and will confirm such advice in writing, (i) when the Registration Statement has been amended or supplemented and when any post-effective amendment thereto becomes effective; (ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) Underwriter promptly of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or of the initiation institution of any proceedings for that purpose purpose, or of any notification of the suspension of qualification of the Shares for sale in any jurisdiction or the threat thereof; (iv) initiation or threatening of any proceedings for that purpose. The Company also will advise the Underwriter and counsel to the Underwriter promptly of any request of the happening Commission for amendment or supplement of any event that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances in which they are made, not misleading; and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC relating to the Company, the Registration Statement, of any preliminary prospectusPreliminary Prospectus, or of the Prospectus. For purposes of this section, informal requests by or acts of for additional information, and the SEC staff shall Company will not be deemed actions of file any amendment or requests by supplement to the SECRegistration Statement (either before or after it becomes effective), to any Preliminary Prospectus, or to the Prospectus (including a prospectus filed pursuant to Rule 424(b)) if the Underwriter has not been furnished with a copy prior to such filing or if the Underwriter reasonably objects to such filing.
5.3 The (b) During the time which a Prospectus relating to the Shares is required to be delivered under the Act, the Company will shall comply with all requirements imposed on it by the provisions of any undertakings contained in the Registration Statement.
5.4 On the Effective DateAct, as now and hereafter amended, and thereafter by the Rules and Regulations, as from time to timetime in force, so far as is necessary to permit the Company will deliver to continuance of sales of or dealings in the Distributor, without charge Shares as contemplated by the provisions hereof and in a timely manner, as many copies of the Prospectus and any printed supplemental material as the Distributor may reasonably requestProspectus. If during such period of time any event shall occur that in occurs as a result of which the judgment Prospectus, including any subsequent amendment or supplement, would include an untrue statement of the Company a material fact, or the Distributor should would omit to state any material fact required to be set forth in the Prospectus in order stated therein or necessary to make any statement the statements therein, in the light of the circumstances under which it was they were made, not misleading, or if during such period it is necessary becomes necessary, in the good faith opinion of counsel to supplement or the Company and counsel to the Underwriter, to amend the Prospectus Prospectus, including any amendment or supplement thereto, to comply with lawthe Act, the Company promptly will advise the Underwriter and counsel to the Underwriter thereof and will promptly prepare and file with the Commission an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; and, if the Underwriter is required to deliver a prospectus nine (9) months or more after the Effective Date, the Company, upon request of the Underwriter and at the expense of the Underwriter, will prepare and deliver promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(c) The Company will not, prior to the Second Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-B under the Act, except as contemplated in the Prospectus.
(d) The Company will not acquire any of the shares of Common Stock before the Second Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, nor will the Company declare or pay any dividend or make any other distribution upon its shares of Common Stock payable to shareholders of record on a date prior to such earlier date, except as disclosed in the Prospectus.
(e) The Company will make generally available to its security holders and the Underwriter an earnings statement of the Company as soon as practicable, but in no event later than 45 days after the end of the Company's fiscal quarter first occurring after the first anniversary of the Effective Date, covering a period of twelve (12) consecutive calendar months beginning after the Effective Date which will satisfy the provisions of the last subsection of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(f) During such period as a prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, the Company will forthwith prepare and duly file with the SEC an appropriate supplement or amendment thereto, and will deliver furnish to the DistributorUnderwriter, without charge, such number of copies thereof as at the Distributor may reasonably request.
5.5 At its own expense, the Company agrees to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary in connection with the qualification expense of the Units for sale in such states as Distributor may designate. Concurrent with the effectiveness Company, copies of the Registration Statement, the Prospectus, any Preliminary Prospectus, and all amendments and supplements to any such documents in each case as soon as available and in such quantities as the Underwriter may reasonably request, for the purposes contemplated by the Act.
(g) The Company shall provide take or cause to be taken in cooperation with the Underwriter and counsel to the Distributor Underwriter all actions required in writing qualifying or registering the Shares for sale under the Blue Sky Laws of such jurisdictions as the Underwriter may reasonably designate, provided the Company shall not be required to qualify as a list foreign corporation or take any action that would subject the Company to general service of those states process under the law of any such state (except with respect to the offering and sale of the Shares), and will continue such qualifications or registrations in effect so long as reasonably requested by the Underwriter to effect the distribution of the Shares (including, without limitation, compliance with all undertakings given pursuant to such qualifications or registrations) in such jurisdiction. In each jurisdiction where any of the Shares shall have been qualified as provided above, the Company will file such reports and statements as may be required by the laws of such jurisdiction to continue such qualification in effect for as long as may be reasonably necessary to complete the distribution of the Shares in such jurisdiction.
(h) The Company will furnish to its security holders annual reports containing consolidated financial statements audited by independent public accountants and quarterly reports containing consolidated financial statements and financial information which may be unaudited. During the period ending five years after the date of this Agreement, (i) as soon as practicable after the end of each fiscal year, the Company will furnish to the Underwriter two copies of the annual report of the Company containing the consolidated balance sheet of the Company as of the close of such fiscal year and corresponding consolidated statements of income, stockholders' equity, and cash flows for the year then ended, such consolidated financial statements to be under the certificate or opinion of the Company's independent accountants, and (ii) the Company will file promptly and will furnish to the Underwriter at or before the filing thereof copies of all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13, 14, or 15 of the Exchange Act. During such five-year period the Company also will furnish to the Underwriter one copy of the following:
(i) as soon as practicable after the filing thereof, each report, statement, or other jurisdictions document filed by the Company with the Commission;
(ii) all other information reasonably requested by the Underwriter with respect to the Company to comply with Rule 15c2-11 of the Rules and Regulations and Section 4 of Schedule H of the NASD By-Laws;
(iii) as soon as available, each report, statement, or other document of the Company mailed to its shareholders; and
(iv) such additional documents and information with respect to the Company and its affairs as the Underwriter may from time to time reasonably request.
(i) The Company will use its best efforts to satisfy or cause to be satisfied the conditions to the obligations of the Underwriter set forth in Section 7 hereof.
(j) The Company shall use every reasonable effort to effect the quotation of the shares of Common Stock on the OTC Bulletin Board as promptly as practicable.
(k) The Company shall prepare and timely file with the Commission, from time to time, such reports as are required to be filed by the Rules and Regulations.
(l) The Company shall comply in all respects with the undertakings given by the Company in connection with the qualification or registration of the Shares for offering and sale under the Blue Sky Laws.
(m) The Company shall apply the net proceeds from the sale of the Shares to be sold by it hereunder in the manner and for the purposes specified under the heading "Use of Proceeds" in the Prospectus. The Company shall file, and will furnish or cause to be furnished to the Underwriter and counsel to the Underwriter, copies of all reports as may be required in accordance with Rule 463 under the Act.
(n) The Company shall supply the Underwriter and counsel to the Underwriter, at the Company's cost, with a bound volume of the Underwriting materials within a reasonable time after the Closing Date.
(o) Except for the sale of Shares pursuant to this Agreement, neither the Company nor the Bank shall, directly or indirectly, offer, sell, contract to sell, issue, distribute, grant any option, right, or warrant to purchase or otherwise dispose of any shares of Common Stock or securities convertible into, or exercisable, or exchangeable for, shares of Common Stock, in the open market or otherwise, for a period of one-hundred eighty days (180) days after the later of the Effective Date or the date of this Agreement, without the express prior written consent of the Underwriter.
(p) The Company shall cause each director, officer and principal shareholder of the Company to furnish to the Underwriter, on or before the date of this Agreement, a letter or letters, in form and substance satisfactory to counsel for the Underwriter, pursuant to which the Units are qualified each such person shall agree not to offer for sale, together contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate, or otherwise dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock for a period of one hundred eighty (180) days following the date of the Prospectus, except with restrictions the express prior written consent of the Underwriter.
(q) The Company shall pay, or reimburse if paid by the Underwriter, the costs, fees and requirements applicable theretoexpenses incurred in connection with the initial public offering as described in Section 6 below, and whether or not the Distributor will sell Units only transactions contemplated hereunder are consummated or if this Agreement is terminated for any reason, including those listed in such states or jurisdictions and in compliance with such restrictions and requirementsSection 6 below.
Appears in 1 contract
Agreements of the Company. 5.1 The Company covenants and agrees with the several Underwriters as follows:
(a) If the Original Registration Statement has not already been declared effective by the Commission, the Company will use its best efforts to cause the Original Registration Statement and any post-effective amendments thereto to become effective as promptly as possible.
(b) The Company will not, either prior to the Effective Date Applicable Time or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the UnitsShares by an Underwriter or a dealer, file any amendment or supplement to the Registration Statement or the Prospectus, whether pursuant to the 1933 Act, 1940 Act or otherwise, unless a copy thereof shall first have been submitted to the Distributor Representatives within a reasonable period of time prior to the filing thereof and the Distributor Representatives shall not have objected thereto in good faith. The Distributor may but shall not be obligated to propose from time to time such amendment or amendments to the Registration Statement and such supplement or supplements to the Prospectus as, in the light of future developments, may, in the opinion of the Distributor's counsel, be necessary or advisable. Subject to Section 5.4, if the Company does not so amend the Registration Statement and/or so supplement the Prospectus within fifteen days after receipt by the Company of a written request from Distributor to do so, Distributor may, at its option, terminate this Agreement.
5.2 (c) The Company will notify the Distributor Representatives promptly, and will confirm such advice in writing, (i) when any amendment to the Registration Statement has been amended filed or supplemented and when becomes effective or any post-effective amendment thereto becomes effective; or supplement to the Prospectus has been filed, (ii) of any request by the SEC Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and of all action by the SEC with respect to any amendment to any Registration Statement or Prospectus that may be filed from time to time with the SEC; (iii) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or the initiation of any proceedings for that purpose or the threat thereof; , (iv) of the happening of any event during the period mentioned in the third sentence of Section 4(f) that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein, in the light of the circumstances in which they are made, not misleading; , and (v) of receipt by the Company or any representative or attorney of the Company of any other communication from the SEC Commission relating to the Company, the Registration Statement, any preliminary prospectus, prospectus or the Prospectus. For purposes If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus, any preliminary prospectus or any Issuer Free Writing Prospectus, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A or 430C of the Rules and Regulations, the Company will comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A or 430C and notify the Representatives promptly of all such filings. If the Company elects to rely upon Rule 462(b) under the Act, the Company shall file a registration statement under Rule 462(b) with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this sectionAgreement, informal requests and the Company shall at the time of filing either pay to the Commission the filing fee for such Rule 462(b) registration statement or give irrevocable instructions for the payment of such fee pursuant to the Rules and Regulations. The Company will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or acts Rule 462 were received in a timely manner by the Commission.
(d) The Company will furnish to each Representative, without charge, a copy of one signed copy of each of the SEC staff shall not be deemed actions Registration Statement and of any pre- or requests by post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto and will furnish to the SECRepresentatives, without charge, for transmittal to each of the other Underwriters, a copy of the Registration Statement and any pre- or post-effective amendment thereto, including financial statements and schedules but without exhibits.
5.3 (e) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
5.4 On (f) So long as delivery of a prospectus by an Underwriter or dealer may be required by the Effective Date, Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Rules and thereafter from time to timeRegulations), the Company will deliver to each of the DistributorUnderwriters, without charge and in a timely mannercharge, as many written and electronic copies of each preliminary prospectus, the Prospectus and any printed supplemental material each Issuer Free Writing Prospectus as the Distributor Representatives may reasonably request. The Company consents to the use of each preliminary prospectus, the Prospectus, each Issuer Free Writing Prospectus or any amendment or supplement thereto by the Underwriters and by all dealers to whom the Shares may be sold, both in connection with the offering or sale of the Shares and for any period of time thereafter during which the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur that in the judgment of the Company or counsel to the Distributor Underwriters should be set forth in the Prospectus in order to make any statement therein, in the light of the circumstances under which it was made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to each of the DistributorUnderwriters, without charge, such number of copies thereof of such supplement or amendment to the Prospectus as the Distributor Representatives may reasonably request.
5.5 At . The Company will not file any document under the Exchange Act, or the rules and regulations thereunder before the termination of the offering of the Shares by the Underwriters that is not approved by the Representatives after reasonable notice thereof. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus or 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 prevailing at that subsequent time, not misleading, the Company will promptly notify Xxxxxxx & Company, LLC and, if requested by Xxxxxxx & Company, LLC, will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(g) Prior to any public offering of the Shares, the Company agrees will cooperate with the Representatives and counsel to prepare, execute, and file any and all documents and to take all actions that may be reasonably necessary the Underwriters in connection with the registration or qualification of the Units Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request; provided, that in such states no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not now so subject.
(h) The Company will, so long as Distributor may designate. Concurrent required under the Rules and Regulations, furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, shareholders’ equity and cash flow of the Company and its consolidated Subsidiaries, if any, certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the effectiveness 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.
(i) The Company will make generally available to holders of its securities as soon as may be practicable, but in no event later than the Availability Date (as defined below), an earning statement (which need not be audited but shall be in reasonable detail) covering a period of 12 months commencing after the Effective Date that will satisfy the provisions of Section 11(a) of the Act (including Rule 158 of the Rules and Regulations). For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(j) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or reimburse if paid by the Representatives all costs and expenses incident to the performance of the obligations of the Company under this Agreement and in connection with the transactions contemplated hereby, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits to it, each preliminary prospectus, Prospectus, any Issuer Free Writing Prospectus, and any amendment or supplement thereto, (ii) the preparation and delivery of certificates representing the Shares, (iii) the printing of this Agreement, the Agreement Among Underwriters, any Selected Dealer Agreements, any Underwriters’ Questionnaires, any Underwriters’ Powers of Attorney, and any invitation letters to prospective Underwriters, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, any preliminary prospectus, the Company shall provide Prospectus and any Issuer Free Writing Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the Distributor in writing a list listing of those states and other jurisdictions in which the Units are qualified for saleShares on the Nasdaq, together (vi) any filings required to be made by the Underwriters with restrictions and requirements applicable theretoFINRA, and the Distributor fees, disbursements and other charges of counsel for the Underwriters in connection therewith, (vii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 4(g), including the fees, disbursements and other charges of counsel to the Underwriters in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other charges of counsel to the Company (but not those of counsel for the Underwriters, except as otherwise provided herein) and of the Accountants, (ix) the transfer agent for the Shares, and (x) any travel expenses of the Company’s officers, directors and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Shares.
(k) The Company will not at any time, directly or indirectly, take any action designed or that might reasonably be expected to cause or result in, or that will constitute, stabilization of the price of the shares of Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Preliminary Prospectus and the Prospectus under “Use of Proceeds.”
(m) During the period beginning from the date hereof and continuing to and including the date that is 90 days after the date of the Prospectus, without the prior written consent of Xxxxxxx & Company, LLC, the Company will not (1) offer, sell, contract to sell, pledge, grant options, warrants or rights to purchase, or otherwise dispose of any equity securities of the Company or any other securities convertible into or exchangeable for its Common Stock or other equity security (other than pursuant to employee stock option plans disclosed in the Prospectus or pursuant to the conversion of convertible securities or the exercise of warrants in each case outstanding on the date of this Agreement) or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise; provided, however, that if (a) during the last 17 days of such 90-day period the Company issues an earnings release or material news or a material event relating to the Company occurs or (b) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by this Section 5(l) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless Xxxxxxx & Company, LLC waives, in writing, such extension.
(n) During the period of 90 days after the date of the Prospectus, the Company will not, without the prior written consent of Xxxxxxx & Company, LLC, grant options to purchase shares of Common Stock at a price less than the initial public offering price. During the period of 90 days after the date of the Prospectus, the Company will not file with the Commission or cause to become effective any registration statement relating to any securities of the Company without the prior written consent of the Representatives.
(o) The Company will cause each of its officers, directors and certain shareholders designated by the Representatives to, enter into lock-up agreements with the Representatives to the effect that they will not, without the prior written consent of the Representatives, sell, contract to sell Units only or otherwise dispose of any shares of Common Stock or rights to acquire such shares according to the terms set forth in such states or jurisdictions and in compliance with such restrictions and requirementsSchedule III hereto.
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