Agreements of the Company. The Company agrees with each of the Underwriters: (a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; (b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; (d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension; (f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus; (h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market; (i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and (j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 3 contracts
Samples: Underwriting Agreement (Us Home Systems Inc), Underwriting Agreement (Us Home Systems Inc), Underwriting Agreement (Us Home Systems Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare The Offering Statement has become qualified, and the Prospectus in a form reasonably approved by you and to file such Prospectus Company filed the Final Offering Circular pursuant to Rule 424(b253 and Regulation A, within the prescribed time period.
(b) Upon effectiveness of this agreement, the Company will not, during such period as the Final Offering Circular would be required by law to be delivered in connection with sales of the Shares in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rules 251 and 254 under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreementor any similar rule(s)), or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no file any amendment or supplement to the Registration Offering Statement or Prospectus the Final Offering Circular unless a copy thereof shall first have been submitted to StartEngine within a reasonable period of time prior to any Time of Delivery that the filing thereof and StartEngine shall be disapproved by you promptly after reasonable notice thereof; to advise younot have reasonably objected thereto in good faith.
(c) The Company will notify StartEngine promptly, promptly after it receives notice thereofand will, of the time if requested, confirm such notification in writing: (1) when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus Offering Statement is filed; (2) of any request by the Commission for any amendments to the Offering Statement or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy amendment or information statements required to be filed by the Company with the Commission subsequent supplements to the date of the Prospectus and Final Offering Circular or for so long as the delivery of a prospectus is required in connection with the offering or sale of the Sharesadditional information; to advise you, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Offering Statement or the Final Offering Circular, or the initiation of any proceedings for offering that purpose or sale the threat thereof; and (4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Offering Statement, the Preliminary Offering Circular or the Final Offering Circular untrue in any jurisdictionmaterial respect or that requires the making of any changes in the Offering Statement, the Preliminary Offering Circular or the Final Offering Circular in order to make the statements therein, in light of the initiation or threatening of circumstances in which they are made, not misleading. If the Company has omitted any proceeding for any such purposeinformation from the Offering Statement, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to it will use its best efforts to obtain comply with the withdrawal provisions of and make all requisite filings with the Commission pursuant to Regulation A, the Act and the Rules and Regulations and to notify StartEngine promptly of all such order;filings.
(bd) Promptly from If, at any time when the Final Offering Circular relating to time to take such action as you may reasonably request to qualify the Shares 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 Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales under the Act, the Company becomes aware of Shares, and, if the delivery occurrence 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 Final Offering Circular, as then amended or supplemented would supplemented, would, in the reasonable judgment of counsel to the Company or counsel to StartEngine, include an any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, oror the Offering Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to StartEngine, 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 shall be necessary during such period is necessary, in the reasonable judgment of counsel to the Company or counsel to StartEngine, at any time to amend or supplement the Prospectus in order Final Offering Circular or the Offering Statement to comply with the Act or the Exchange ActRules and Regulations, to the Company will promptly notify you StartEngine and upon your request to file such document and to will promptly prepare and furnish without charge file with the Commission, at the Company’s expense, an amendment to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of the Offering Statement and/or an amended Prospectus amendment or a supplement to the Prospectus which will correct Final Offering Circular that corrects such statement or and/or omission or effect effects such compliance;
(d) To make generally available . The Company consents to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date use of the Registration StatementFinal Offering Circular or any amendment or supplement thereto by StartEngine, an earnings statement and StartEngine agrees to provide to each Investor, prior to the Closing and, as applicable, any Subsequent Closing, a copy of the Company Final Offering Circular and the Subsidiaries (which need not be audited) complying with 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;any amendments or supplements thereto.
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;[Reserved.]
(fj) During a period of three 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 stockholders, and to 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 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 will apply the net proceeds from the offering and sale of the Shares for in the purposes manner set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) Final Offering Circular under the Act; and
(j) Upon the reasonable request caption “Use of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredProceeds.”
Appears in 2 contracts
Samples: Posting Agreement (Knightscope, Inc.), Posting Agreement (Knightscope, Inc.)
Agreements of the Company. The Company agrees with each of the Underwritersyou as follows:
(a) To prepare The Company will notify you promptly, and (if requested by you in writing) will confirm such advice in writing, (1) of the effectiveness of any amendment to the Registration Statement and of the filing of any supplement to the Prospectus, (2) of any comments of the Commission regarding the Registration Statement or the Prospectus (or any of the documents incorporated by reference therein) or of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceedings for that purpose, (4) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Debt Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose and (5) of the happening of any event during the period mentioned in paragraph (d) below which makes any statement of a form reasonably approved material fact made in the Registration Statement or the Prospectus (as theretofore amended or supplemented) untrue or which requires the making of any changes in the Registration Statement or the Prospectus (as theretofore amended or supplemented) in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. The Company will use its reasonable best efforts to prevent the issuance of any order suspending the effectiveness of the Registration Statement or suspending the qualification of the Offered Debt Securities for offer or sale in any jurisdiction, and if any such order is issued, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment.
(b) The Company will furnish to each of you, without charge, one conformed copy of the Registration Statement and any post-effective amendment thereto, including all financial statements and schedules, exhibits and documents incorporated therein by reference (including exhibits incorporated therein by reference to the extent not previously furnished to you) and will deliver to you for delivery to each Underwriter the number of conformed copies of the Registration Statement and any post- effective amendment thereto, excluding exhibits, as you may request.
(c) The Company will give you advance notice of its intention to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no any amendment or supplement to the Registration Statement or the Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment with respect to the Registration Statement has been filed Offered Debt Securities, and will not file any such amendment or becomes effective or any supplement to which you shall reasonably object in writing.
(d) During the period of time that the Prospectus is required by law to be delivered, the Company will deliver to you for delivery to each Underwriter, without charge, as many copies of the Prospectus or any amended amendment or supplement thereto as you may reasonably request on behalf of the Underwriters. The Company consents to the use of the Prospectus has been filed or any amendment or supplement thereto by the Underwriters and by all dealers to furnish you whom the Offered Debt Securities may be sold, both in connection with copies thereof; the offering or sale of the Offered Debt Securities and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company should be set forth (or incorporated by reference) in the Prospectus in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, 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 promptly with the Commission an appropriate supplement or amendment thereto, and forthwith file all reports and any definitive proxy statement or information statements statement required to be filed by the Company with the Commission pursuant to Section 13 or 14 of the Exchange Act subsequent to the date of the Prospectus Prospectus, and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; will deliver to advise you, promptly after it receives notice thereofwithout charge, such number 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, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action copies thereof as you may reasonably request on behalf of the Underwriters. If during such period of time any event shall occur which in your judgment should be so set forth (or incorporated by reference) in the Prospectus, or which in your judgment makes it necessary to qualify so supplement or amend the Shares Prospectus, the Company will consult with you concerning the necessity of filing with the Commission a supplement or an amendment to the Prospectus or a report pursuant to Section 13 or 14 of the Exchange Act.
(e) Prior to any public offering of the Offered Debt Securities by the Underwriters, the Company will cooperate with you and counsel retained by you on behalf of the Underwriters in connection with the registration or qualification of the Offered Debt Securities for offering offer and sale under the securities or Blue Sky laws of, and the determination of the eligibility of the Offered Debt Securities for investment under the laws of, such jurisdictions as you request; provided, that in no event shall the Company be obligated to qualify to do business as a foreign corporation or as a securities dealer in any jurisdiction where it is not now so qualified, to conform its capitalization or the composition of its assets to the securities or Blue Sky laws of any jurisdiction or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject. The Company will pay all reasonable fees and expenses (including reasonable counsel fees and expenses) relating to qualification of the Offered Debt Securities under such securities or Blue Sky laws and in connection with the determination of the eligibility of the Offered Debt Securities for investment under the laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;designate.
(cf) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which The Company will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders security holders and to deliver you and to you as soon as practicable, but in any event not later than eighteen months after each Underwriter who may request the effective date of the Registration Statement, an same consolidated earnings statement of the Company and the Subsidiaries statements (which need not be audited) complying with that satisfy the provisions of Section 11(a11 (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;thereunder.
(eg) During the Lock-Up Period, the The Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) will pay all expenses in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Periodpreparation, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date printing and filing of the Registration Statement, any preliminary prospectus, the Prospectus, any legal investment memorandum and Blue Sky memorandum as contemplated by Section 4(e), (2) the preparation, issuance and delivery of the Offered Debt Securities (other than transfer taxes) and the execution and delivery of the Indenture, (3) the printing of any Dealer Agreement, (4) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Offered Debt Securities by dealers to furnish whom Offered Debt Securities may be sold, and (5) any fees paid to rating agencies, if any, selected by the Company in connection with the rating of the Offered Debt Securities.
(h) If this Agreement is terminated by you because any condition to the obligations of you and the Underwriters set forth in Section 7 hereof is not satisfied or because of any failure or refusal on the part of the Company to comply with the terms hereof or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse you on behalf of the Underwriters for all out-of-pocket expenses (including the fees and expenses of counsel retained by you on behalf of the Underwriters) reasonably incurred by you in connection herewith. The Company will not in any event be liable to you copies or any of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you the Underwriters for damages on account of loss of anticipated profits.
(i) as soon as they are availableFrom the date hereof to and including the Closing Date, copies of the Company will not offer or sell, or contract to sell, any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of debt securities of the Company is listed; and (ii) such with a maturity of more than one year, including 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to listOffered Debt Securities, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line a public offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredyour prior written consent.
Appears in 2 contracts
Samples: Underwriting Agreement (Tci Communications Inc), Underwriting Agreement (Tci Communications Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you the Underwriters and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to any the Time of Delivery that which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely a description of the Securities, in a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all reports and any definitive proxy or information statements other material required to be filed by the Company with the Commission subsequent pursuant to Rule 433(d) under the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesAct; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusother prospectus in respect of the Securities, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the 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 other prospectus or suspending any such qualification, to promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, As soon as practicable on the business day New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in New York City in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Sharesrequest, and, if the delivery of a prospectus or the notice referred to in Rule 173(a) under the Act in lieu thereof is required during this period by law at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities 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 the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Trust Indenture Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities Securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its stockholders and to deliver to you securityholders as soon as practicable, but in any event not later than eighteen sixteen months after the effective date of the Registration StatementStatement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and the Subsidiaries its subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration StatementCommission thereunder (including, at the option of the Company, Rule 158);
(e) During the Lock-Up Periodperiod beginning from the date hereof and continuing to and including the Time of Delivery or such earlier time as you may notify the Company, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase purchase, make any short sale or otherwise sell or dispose ofdispose, except as provided hereunder, in the Separation and Distribution Agreement and in the Exchange Agreement of any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionSecurities;
(f) To comply with its disclosure, reporting and delivery obligations under the Act and the Exchange Act; and
(g) During a period of three 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 stockholders, and to 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;
request (g) To apply such financial statements to be on a consolidated basis to the net proceeds from extent the sale accounts of the Shares for the purposes set forth Company and its subsidiaries are consolidated in the Prospectus;
(h) To use reports furnished to its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay stockholders generally or to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; Commission): provided, however, it being understood that the foregoing license filing of any such reports, financial statements and information with the Commission via the XXXXX filing system shall be used solely for deemed to have been delivered to you as a result of such filing; and provided, further, that should any information required to be provided pursuant to clause (ii) be nonpublic information, prior to providing any such information the purpose described aboveCompany shall notify the Underwriters of such fact and if any such Underwriter requests such information to be provided to it, is granted without any fee and it shall comply with such confidentiality requirements as the Company may not be assigned or transferredreasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Embarq CORP), Underwriting Agreement (Embarq CORP)
Agreements of the Company. The Company agrees with each of the Underwritersyou as follows:
(a) To prepare the Supplemented PREP Prospectus and the U.S. Supplemented Prospectus in a form reasonably approved by you you, acting reasonably, and (i) to file such Supplemented PREP Prospectus pursuant to Rule 424(b) under with the Act ASC in accordance with the PREP Procedures not later than the Commission’s ASC's close of business on the second first business day following the execution and delivery of this Agreement, or, if applicable, Agreement and (ii) to file such earlier time as may be required by Rule 430A(a)(3) under U.S. Supplemented Prospectus with the ActCommission pursuant to General Instruction II.L. of Form F-10 not later than the Commission's close of business on the first business day following the day that the filing of the Supplemented PREP Prospectus is made with the ASC; to make no amendment or supplement to notify the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable Underwriters promptly, and confirm the notice thereof; to advise youin writing, promptly after it receives notice thereof, of the time (i) when any post-effective amendment to the Registration Statement has shall have been filed with the Commission or becomes effective or shall have become effective, and when any supplement or amendment to the Prospectuses shall have been filed, (ii) of the receipt of any comments from the ASC or the Commission, (iii) of any request by the ASC to amend or supplement the Base PREP Prospectus or the Canadian Prospectus or for additional information, or of any amended request by the Commission to amend the Registration Statement or to amend or supplement the U.S. Prospectus has been filed or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or, to the knowledge of the Company, the threatening of any proceedings for any such purpose, and (v) of the issuance by the ASC of any order having the effect of ceasing or suspending the distribution of the Securities or the trading in the securities of the Company, or of the institution or, to furnish you with copies thereofthe knowledge of the Company, the threatening of any proceedings for any such purpose; to use its best efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use or such order ceasing or suspending the distribution of the Securities or the trading in the securities of the Company and, if any such order is issued, to promptly use its best efforts to obtain the withdrawal of such order at the earliest possible time; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company (i) with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), and (ii) with the ASC in accordance with Alberta Securities Laws, in each case subsequent to the date of the Prospectus Prospectuses and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; Securities, and to advise you, promptly after it receives notice thereof, of the issuance by the Commission of make no further amendment or 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, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of supplement to 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, promptly to use its best efforts to obtain the withdrawal of such orderProspectuses unless approved by you (which approval shall not be unreasonably withheld) after reasonable notice thereof;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions in the United States as you may reasonably 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 SharesSecurities, provided, 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 jurisdictionjurisdiction and further provided that nothing contained in this Section 5(b) shall require the Company to file or qualify a prospectus in any province or territory of Canada, other than Alberta (for the purpose of qualifying under Alberta Securities Laws the distribution of the Securities in the United States), in connection with an offer and sale of the Securities in any such province or territory;
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act, any event occurs as a result of which, in the determination of the Company after consultation with the Underwriters, the Prospectuses would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or the Prospectuses to comply with Alberta Securities Laws, the Securities Act or the Exchange Act, or the respective rules thereunder, the Company promptly will (i) notify the Representative of such event, (ii) prepare and file with the ASC and the Commission, subject to the first sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any amended Canadian Prospectus, U.S. Prospectus and Registration Statement to the Representative in such quantities as it may reasonably request;
(d) Prior to 10:00 a.m.5:00 P.M., Richmond, Virginia New York City time, on the New York business day next succeeding the date of this Agreement and from time to timetime until the distribution of the Securities has been completed, to furnish the Underwriters with written and electronic copies of the Registration Statement and the U.S. Prospectus at such locations and in New York City in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Sharesrequest, and, if the delivery of a prospectus is required during this period and by applicable law, if at such time any event shall have occurred as a result of which the Prospectus Prospectuses 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 light of the circumstances under which they were made when such Prospectus is Prospectuses are delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus Prospectuses or to file under Alberta Securities Laws or under the Exchange Act any document incorporated by reference in the Prospectuses in order to comply with Alberta Securities Laws, the Securities Act, the Exchange Act or the Exchange Trust Indenture Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus Prospectuses or a supplement supplements to the Prospectus Prospectuses which will correct such statement or omission or effect such compliance. The Company has furnished or will deliver to the Underwriters and counsel for the Underwriters, without charge, a copy of the Canadian Preliminary Prospectus, the Base PREP Prospectus and the Canadian Prospectus, approved, signed and certified as required by the Alberta Securities Laws, and signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and including a signed copy of the Form F-X) and signed copies of all consents and certificates of experts; the copies of the Canadian Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the ASC pursuant to the System for Electronic Document Analysis and Retrieval (SEDAR);
(de) The Company will 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 in the United States as you may reasonably request, to continue such registration or qualification in effect so long as reasonably 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 Prospectuses, the Registration Statement or the offering or sale of the Securities, in any jurisdiction in which it is not now so subject.
(f) To make generally available to its stockholders and to deliver to you securityholders as soon as practicable, but in any event not later than eighteen twelve months after the effective date of the Registration StatementStatement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and the Subsidiaries its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including Rule 158 under the Securities Act);
(g) 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 incidental 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 qualification for distribution of the Securities under Alberta Securities Laws, the registration and delivery of the Securities under the Securities Act covering a period of at least 12 months beginning after and all other fees and expenses in connection with the effective date preparation, printing, filing and distribution of the Registration Statement;Statement (including financial statements and exhibits), the U.S. Preliminary Prospectus, the U.S. Prospectus, the Canadian Preliminary Prospectus and the Canadian 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 printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection with such registration or qualification and memoranda relating thereto), (iv) the cost of printing certificates representing the Securities, (v) the costs and charges of any transfer agent, registrar and/or depositary (including DTC), (vi) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii) any fees charged by rating agencies for the rating of the Securities, and (viii) all other costs and expenses incidental to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section.
(eh) During the Lock-Up Period, To do and perform all things required or necessary to be done and performed under this Agreement by the Company shall notprior to and after the Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Securities.
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectuses under the caption "Use of Proceeds."
(j) To not take, directly or indirectly, offer, sell, offer any action which is designed to sell, contract or which has constituted or which might be reasonably be expected to sell, pledge, grant cause or result in stabilization or manipulation of the price of any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities security of the Company that are substantially similar to facilitate the Shares, including but not limited to any shares of Common Stock sale or any other capital stock distribution of the Company or any Securities in violation of applicable securities that are convertible into or exchangeable for, or that represent laws.
(k) To obtain the right to receive, Common Stock or any other capital stock approval of DTC for "book-entry" transfer of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholdersSecurities, and to deliver to you (i) as soon as they are available, copies comply in all material respects with all 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 Shares for the purposes its agreements set forth in the Prospectus;representation letters of the Company to DTC relating to the approval of the Securities by DTC for "book-entry" transfer.
(hl) To use its best efforts Prior to list, subject to notice the filing of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b)any prospectus supplement or amendment, the Company shall file a Rule 462(b) Registration Statement with allow the Commission Underwriters to conduct all due diligence investigations which they reasonably require in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay order to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) fulfill their obligations as underwriters under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredapplicable laws.
Appears in 2 contracts
Samples: Underwriting Agreement (Paramount Resources LTD), Underwriting Agreement (Paramount Resources LTD)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such the Prospectus pursuant to Rule 424(b) under the Securities Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Securities Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Statement, the Time of Delivery that Sale Prospectus or the Prospectus which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Time of Sale Prospectus or the Prospectus or any amended Time of Sale Prospectus or Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary the Time of Sale Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Time of Sale Prospectus or the 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 the Time of Sale Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such order;.
(b) To furnish to the Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Underwriter reasonably objects.
(c) Not to take any action that would result in the Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriter, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriter the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable opinion of counsel for the Underwriter, 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 Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which Securities may have been sold by the Underwriter on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(f) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;.
(cg) Prior to 10:00 a.m.As soon as practicable, Richmond, Virginia time, on but not later than the business day next succeeding the date of this Agreement and from time to timeAvailability Date (as defined below), to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 twelve months beginning after the effective date of the Registration Statement which will satisfy the provisions of Section 11(a) of the Securities Act (for the purpose of this subsection 5(g) only, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes the effective date of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunderthat, any securities of if such fourth fiscal quarter is the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients last quarter of the Company’s securities agree in writing prior fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter).
(h) To furnish to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder holders of the Lock-Up Period Securities as if such recipients were soon as practicable after the Companyend of the each fiscal year an annual report (including a balance sheet and statements of operations, changes in stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, make available to the holders of the Securities 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), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days consolidated summary financial information of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then and its consolidated subsidiaries for such quarter in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;reasonable detail.
(fi) During a period of three five years from the effective date of the Registration Statement, to make available on XXXXX or furnish to you copies of all reports or other communications (financial or other) furnished to stockholdersshareholders, and to 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 listedCompany; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;, except to the extent such information is publicly available through the Commission’s website or disseminated through a national news service.
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(ij) If the Company elects to rely upon on Rule 462(b), the Company shall file a the Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, Eastern time on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act; and.
(jk) Upon For a period of 120 days from the reasonable request effective date of the Registration Statement, not to offer, sell, contract to sell or otherwise dispose of any Underwritersecurities of the Company (other than the Securities pursuant to this Agreement only or pursuant to (i) employee stock compensation or stockholder dividend reinvestment plans, to furnish(ii) merger and acquisition transactions, or cause to be furnished, to such Underwriter an electronic version (iii) currently outstanding warrants or options) without your prior written consent.
(l) To apply the net proceeds from the sale of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter Securities for the purpose of facilitating purposes set forth in the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredProspectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Monarch Financial Holdings, Inc.), Underwriting Agreement (Monarch Financial Holdings, Inc.)
Agreements of the Company. The Company hereby agrees with each of the UnderwritersInitial Purchaser as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchaser promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent Initial Purchaser, to the date confirm such advice in writing of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of (i) the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchaser pursuant to Section 5(e) below, of or the initiation or threatening of any proceeding by any state securities commission or any other federal or state regulatory authority for any such purpose, or purpose and (ii) the happening of any request by event during the Commission for the amending or supplementing period referred to in Section 5(c) below that makes any statement of the Registration Statement or Prospectus or for additional information; and, a material fact made in the event of Offering Circular untrue or that requires any additions to or changes in the Offering Circular in order to make the statements therein 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 Securities 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 preventing or suspending the use qualification or exemption of any Preliminary Prospectus Securities under any state securities or prospectus or suspending any such qualificationBlue Sky laws, promptly to the Company shall use its best efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from time To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to time to take such action the Company as you many copies of the Offering Circular, any documents incorporated 4 by reference therein, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). Subject to qualify the Shares for offering Initial Purchaser's compliance with its representations and sale under warranties and agreements set forth in Section 7 hereof, the securities laws of such jurisdictions as you may request and Company consents 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 use of the SharesOffering Circular, providedany documents incorporated by reference therein, that and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser 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;with Exempt Resales.
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during During such period following as in the date hereof that a prospectus reasonable opinion of counsel for the Initial Purchaser an Offering Circular is required by law to be delivered in connection with offers Exempt Resales by the Initial Purchaser, (i) not to make any amendment or sales supplement to the Offering Circular of Shareswhich the Initial Purchaser shall not previously have been advised or to which the Initial Purchaser shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchaser's reasonable request any amendment or supplement to the Offering Circular that may be necessary or advisable in connection with such Exempt Resales.
(d) If, andduring the period referred to in Section 5(c) above, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occur or condition shall exist as a result of which which, in the Prospectus as then amended opinion of counsel to the Initial Purchaser, it becomes necessary to amend or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary supplement the Offering Circular in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus the Offering Circular is delivereddelivered to a QIB, not misleading, oror if, if for any other reason in the opinion of counsel to the Initial Purchaser, it shall be is necessary during such period to amend or supplement the Prospectus in order Offering Circular to comply with the Act or the Exchange Actany applicable law, to notify you and upon your request to file such document and forthwith to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus appropriate amendment or a supplement to the Prospectus which Offering Circular so that the statements therein, as so amended or supplemented, will correct such statement not, in the light of the circumstances when it is so delivered, be misleading, or omission or effect such compliance;
(d) To make generally available to its stockholders so that the Offering Circular will comply with applicable law, and to deliver furnish to you the Initial Purchaser and such other persons as soon the Initial Purchaser may designate such number of copies thereof as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 months beginning after the effective date of the Registration Statement;Initial Purchaser may reasonably request.
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Prior to the Shares, including but not limited to any shares sale of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) all Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Company’s benefit plans existing on, or upon Initial Purchaser and counsel to the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchaser in connection with the merger with registration or acquisition of another corporation or entity or the acquisition qualification of the assets Notes for offer and sale to the Initial Purchaser and pursuant to Exempt Resales under the securities or properties Blue Sky laws of any such corporation jurisdictions as the Initial Purchaser may request and to continue such registration or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, qualification in effect so long as the recipients required for Exempt Resales and to file such consents to service of the Company’s securities agree process or other documents as may be necessary in writing prior order to the consummation of any effect such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMregistration or qualification; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results 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 material news to take any action that would subject it to general consent to service of process or a material event taxation, other than as to matters and transactions relating to the Company occurs Offering Circular or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waivesExempt Resales, in writing, such extension;any jurisdiction in which it is not now so subject.
(f) During 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), it being agreed that all such financial reports will include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of stockholders' equity as of the end of and for such fiscal year, together with 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 three years 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 effective date beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the Registration Statementpreceding year.
(g) So long as the Notes are outstanding, to furnish to you the Initial Purchaser as soon as available copies of all reports or other communications (financial furnished by the Company to its security holders or other) furnished to stockholders, and to 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; 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 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 Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act or the information ("RULE 144 INFORMATION") required by Rule 144(c)(2) under the Act, as applicable.
(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 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 Offering Circular, any documents incorporated by reference 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) such additional information concerning all costs and expenses related to the business transfer and financial condition delivery of the Company as you may from time Notes to time reasonably request;
the Initial Purchaser and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (giii) To apply all costs of printing or producing this Agreement, the net proceeds from other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares Securities, (iv) 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 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 purposes Initial Purchaser in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Securities, (vi) all expenses and listing fees in connection with the application for quotation of the Notes in The PORTAL Market of the National Association of Securities Dealers, Inc. ("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 Registration Statement, as set forth in the Prospectus;Registration Rights Agreement, (xi) all expenses and listing fees in connection with the application for listing the Class A Common Stock issuable upon conversion of the Notes on the New York Stock Exchange (the "NYSE") and (xii) and all other costs and expenses incident to the performance of the obligations of the Company hereunder for which a provision is not otherwise made in this Section.
(hj) To use its best efforts to listeffect the inclusion of the Notes in PORTAL and to maintain the listing of the Notes on PORTAL for so long as the Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry" transfer of the Notes, and to comply with all of its 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.
(l) To cause the Class A Common Stock issuable upon conversion of the Notes to be duly included for quotation on the NYSE prior to the Closing Date, subject to notice of official issuance. The Company will ensure that such Class A Common Stock remain included for quotation on the NYSE or any other national securities exchange following the Closing Date for so long as any shares of Class A Common Stock remain registered under the Exchange Act.
(m) The Company will reserve and keep available at all times, free of preemptive rights, the Shares on shares of Class A Common Stock for the Nasdaq National Market;purpose of enabling the Company to satisfy its obligations to issue the Class A Common Stock upon conversion of the Notes.
(n) The Company shall not offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock (other than the issuance of Class A Common Stock upon conversion of the Notes and issuance of Class A Common Stock under the Company's equity line), the Company's Class B common stock, $0.001 par value per share ("CLASS B COMMON STOCK" and together with the Class A Common Stock, the "COMMON STOCK") or any securities convertible into or exercisable or exchangeable for Class A Common Stock or Class B Common Stock, for a period of 90 days after the date hereof without the prior written consent of CIBC. Notwithstanding the foregoing, during such period (i) If the Company elects may grant securities convertible into or exercisable or exchangeable for Class A Common Stock or Class B Common Stock pursuant to rely upon Rule 462(b)the Company's existing stock option, stock purchase or 401(k) plans, (ii) the Company shall file may issue shares of Common Stock upon the conversion or exchange of a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, convertible or exchangeable security outstanding on the date hereof, and (iii) the Company may create and issue up to $35,000,000 aggregate principal amount of further Notes as further described under the section of the Offering Circular entitled "Description of the Notes -- Further Issuances." The Company shall, prior to or concurrently with the execution of this Agreement, deliver an agreement executed by each of the directors and executive officers of the Company shall at the time of filing either pay to the Commission effect that such person will not, during the filing fee period commencing on the date such person signs such agreement and ending 30 days after the date hereof, without the prior written consent of CIBC, (i) engage in any of the transactions described in the first sentence of this paragraph (whether such shares or any such securities are now owned by such individual or are hereafter acquired) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences associated with the ownership of any Common Stock (whether any such transactions described in clause (i) or (ii) is to be settled by the delivery of Class A Common Stock or Class B Common Stock or such other securities, in cash or otherwise). In addition, in such agreement each of the directors and executive officers of the Company will have agreed not to make any demand for or exercise any registration rights for a period of 30 days after the Rule 462(bdate hereof without the prior written consent of CIBC.
(o) Registration Statement Not to sell, offer for sale or give irrevocable instructions for solicit offers to buy or otherwise negotiate in respect of any security (as defined in the payment Act) that would be integrated with the sale of such fee the Notes to the Initial Purchaser or pursuant to Rule 111(b) Exempt Resales in a manner that would require the registration of any such sale of the Notes under the Act; and.
(jp) Upon During the reasonable request period of two years after the Closing Date, the Company will not, and will not permit any Underwriterof its affiliates (as defined in Rule 144 under the Securities Act) to, to furnish, or cause to be furnished, to such Underwriter an electronic version resell any of the Company’s trademarksSecurities that have been reacquired by any of them.
(q) In connection with the offering, servicemarks until CIBC shall have notified the Company of the completion of the resale of the Securities, neither the Company nor any of its subsidiaries or affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its subsidiaries or affiliates has a beneficial interest any Securities or attempt to induce any person to purchase any Securities; and corporate logo for use on the website, if any, operated by such Underwriter neither it nor any of its subsidiaries or affiliates will make bids or purchases for the purpose of facilitating creating actual, or apparent, active trading in, or of raising the on-line offering price of, the Securities.
(r) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes.
(s) To comply with all of its agreements set forth in the Registration Rights Agreement.
(t) To use the net proceeds received by it from the sale of the Shares; provided, however, that Securities in the foregoing license shall manner specified in the Offering Circular under the caption "Use of Proceeds."
(u) To use its best efforts to do and perform all things required or necessary to be used solely for done and performed under this Agreement by it prior to the purpose described above, is granted without any fee Closing Date and may not be assigned or transferredto satisfy all conditions precedent to the delivery of the Notes.
Appears in 2 contracts
Samples: Purchase Agreement (Skechers Usa Inc), Purchase Agreement (Skechers Usa Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be Date which is disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; information and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 Shares; provided, providedhowever, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of the Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders shareholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 2 contracts
Samples: Underwriting Agreement (Towne Services Inc), Underwriting Agreement (Towne Services Inc)
Agreements of the Company. For purposes of this Section 5, "Closing Date" shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The Company covenants and agrees with each of the UnderwritersInitial Purchasers as follows:
(a) To prepare notify the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicablerequested by the Initial Purchasers, confirm such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereofin writing, of the time when (i) any amendment to 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 file promptly all reports and any definitive proxy or information statements required to be filed filing made by the Company with the Commission subsequent of information relating to the date offering of the Prospectus Notes with any securities exchange or any other regulatory body in the United States or any other jurisdiction and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of (ii) the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of other regulatory authority. The Company shall make every reasonable effort to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or other regulatory authority shall issue an order preventing or suspending the use qualification or exemption of any Preliminary Prospectus Notes under any state securities or prospectus or suspending any such qualificationBlue Sky laws, promptly to use its best efforts the Company shall make every reasonable effort to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from Not to make any amendment or supplement to the Offering Memorandum or to any Incorporated Documents to which the Initial Purchasers shall object in writing after being timely furnished in advance a copy thereof.
(c) If, at any time prior to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws completion 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 SharesNotes by the Initial Purchasers, providedany event shall occur as a result of which, that in connection therewith the judgment of the Company shall or in the reasonable opinion of counsel for the Company or counsel for the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Offering Memorandum or any Incorporated Document in order that the Offering Memorandum or such Incorporated Document not be required include any untrue statement of a material fact or omit to qualify state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if it is necessary or advisable to amend or supplement the Offering Memorandum or any Incorporated Document to comply with applicable law, (i) to promptly notify the Initial Purchasers and (ii) forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum or Incorporated Document so that the statements therein as so amended or supplemented will not include an untrue statement of a foreign corporation material fact or omit to file state a general consent material fact necessary in order to service make the statements therein, in the light of process in any jurisdiction;the circumstances existing when the Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or so that such Offering Memorandum or Incorporated Document will comply with applicable law.
(cd) Prior To promptly deliver to each of the Initial Purchasers such number of copies of any Preliminary Offering Memorandum and, prior to 10:00 a.m., Richmond, Virginia New York City time, on the business day next succeeding the date of this Agreement and from time to timetime thereafter, the Offering Memorandum, all documents incorporated by reference in the Offering Memorandum and all amendments of and supplements to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, anddocuments, if any, as 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you Initial Purchasers may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 months beginning after the effective date of the Registration Statement;request.
(e) During To cooperate with the Lock-Up PeriodInitial Purchasers and counsel for the Initial Purchasers in connection with the qualification or registration of the Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales; provided, however, that the Company shall notnot be required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or taxation, directly in each case, other than as to matters and transactions relating to the Offering Memorandum or indirectlyExempt Resales, in any jurisdiction where it is not now so subject.
(f) For a period of 90 days from the date of the Offering Memorandum, not to offer, sell, offer to sell, contract to sell, pledgepledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities Act relating to, any debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or, with regard to Ordinary Shares, issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16-a-1(h) under the Exchange Act ), enter into any swap, derivative transaction or other arrangement that transfers to purchase another, in whole or in part, any of the economic consequences of ownership of the Ordinary Shares (whether any such transaction is to be settled by delivery of Ordinary Shares, other securities, cash or other consideration) or otherwise sell dispose of any Ordinary Shares (or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the convertible into, exercisable for or exchangeable for Ordinary Shares, including but not limited to any shares of Common Stock ) or any other capital stock interest therein of the Company or of any of the Subsidiaries without the Initial Purchasers' prior written consent, other than the issuance of Conversion Shares and the Put Shares and the Company's issuance of Ordinary Shares upon (i) the exercise of warrants outstanding on the date hereof; (ii) the exercise of currently outstanding options; or (iii) the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof. Notwithstanding the foregoing, the Company may file with the Commission, without the prior consent of Bear, Xxxxxxx & Co. Inc. on behalf of the Initial Purchasers, (A) the shelf registration statement to be prepared in accordance with the Company's obligations under the Registration Rights Agreement and (B) a registration statement in connection with the resale of the options and warrants to purchase Ordinary Shares that are subject to a registration rights agreement in effect on the date hereof.
(g) To obtain the undertaking, substantially in the form attached hereto as Annex IV, of each of its officers and directors listed on Schedule II attached hereto and shareholder Pacific Life Insurance Company to not, during the period of 90 days from the date of the Offering Memorandum, directly or indirectly, without Bear, Xxxxxxx & Co. Inc.'s prior written consent, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16-a-1(h) under the Exchange Act ), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Ordinary Shares (whether any such transaction is to be settled by delivery of Ordinary Shares, other securities, cash or other consideration) or otherwise dispose of, any Ordinary Shares (or any securities that are convertible into into, exercisable for or exchangeable for, for Ordinary Shares) or that represent the right to receive, Common Stock or any other capital stock interest therein of the Company or of any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;Subsidiaries.
(fh) During a the period of three years from the effective date of the Registration StatementOffering Memorandum, to furnish to you the Initial Purchasers copies of all reports or other communications (financial or other) furnished to stockholderssecurity holders, and to deliver to you the Initial Purchasers (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 the Initial Purchasers may from time to time reasonably request;request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission).
(gi) To apply the net proceeds it receives from the sale of the Shares for the purposes Notes as set forth under the caption "Use of Proceeds" in the Prospectus;Offering Memorandum.
(hj) To use its best efforts to list, subject to notice of issuance, list the Conversion Shares on the Nasdaq National Market;NYSE at or prior to the effectiveness of any registration statement prepared in connection with the Company's obligations under the Registration Rights Agreement.
(k) During the period prior to the completion of the Exempt Resales of the Notes by the Initial Purchasers, to file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder.
(l) For so long as any of the Notes remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make available to any holder or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of such Notes from such holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act.
(m) 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 price of any security of the Company. Except as permitted by the Securities Act, not to, prior to the later to occur of (i) If the Company elects to rely upon Rule 462(b)Closing Date and (ii) completion of the Exempt Resales of the Notes, distribute any (i) preliminary offering memorandum other than the Company shall file a Rule 462(bPreliminary Offering Memorandum, (ii) Registration Statement offering memorandum other than the Offering Memorandum, or (iii) other offering material in connection with the Commission offering and sale of the Notes.
(n) To assist the Initial Purchasers in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee arranging for the Rule 462(b) Registration Statement or give irrevocable instructions initial designation of the Notes for trading in the payment PORTAL market in accordance with the rules and regulations adopted by the National Association of such fee pursuant Securities Dealers, Inc. relating to Rule 111(b) under trading in the Act; andPORTAL market.
(jo) Upon the reasonable request To at all times reserve and keep available, free of any Underwriterpreemptive rights, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter Ordinary Shares for the purpose of facilitating enabling the on-line Company to satisfy any obligations to issue Ordinary Shares upon conversion of the Notes.
(p) Prior to the Closing Date, to not, without the prior consent of Bear, Xxxxxxx & Co. Inc. on behalf of the Initial Purchasers, which consent shall not be unreasonably withheld, issue any press releases or other public communications directly or indirectly and hold no press conferences, in each case relating to the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries or the offering of the Shares; providedNotes.
(q) Not to sell, however, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the foregoing license shall sale of the 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 Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Securities Act.
(r) To use its commercially reasonable efforts in cooperation with the Initial Purchasers to permit the Notes to be used solely eligible for the purpose described above, is granted without any fee clearance and may not be assigned or transferredsettlement through DTC.
Appears in 1 contract
Samples: Purchase Agreement (Scottish Annuity & Life Holdings LTD)
Agreements of the Company. The Company agrees with each of the UnderwritersPurchaser as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orPurchaser promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent Purchaser, to the date of the Prospectus and for so long as the delivery of a prospectus is required confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Series C Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purposestate securities commission or other regulatory authority, or and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of that makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Offering Memorandum untrue or omit that requires the making of any additions to state any material fact necessary or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare 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 of the Series C Notes under any state securities or Blue Sky laws, orand if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Series C Notes under any state securities or Blue Sky laws, if for the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish the Purchaser, without charge, as many copies of the Offering Memorandum, and any other reason it shall be necessary during such period amendments or supplements thereto, as the Purchaser may reasonably request. The Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto, by the Purchaser in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus in order Offering Memorandum prior to comply with the Act Closing Date unless the Purchaser shall previously have been advised thereof and shall have no reasonable objection thereto after being furnished a copy thereof. The Company shall promptly prepare, upon the Purchaser's request, any amendment or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement Offering Memorandum that may be reasonably necessary or omission or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resales, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of Purchaser's counsel, it becomes necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the Act and Rule 158 under circumstances when the Act covering Offering Memorandum is delivered to an Eligible Purchaser which is a period of at least 12 months beginning after prospective purchaser, not misleading, or if it is necessary to amend or supplement the effective date Offering Memorandum to comply with applicable law, forthwith to prepare an appropriate amendment or supplement to the Offering Memorandum so that statements therein as so amended or supplemented will not, in the light of the Registration Statement;circumstances when it is so delivered, be misleading, or so that the Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Purchaser and its counsel in connection with the merger with or acquisition of another corporation or entity or the acquisition qualification of the assets Series C Notes under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Purchaser may request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the SharesExempt Resales; provided, however, that the foregoing license Company shall not be used solely required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or taxation, other than as to matters and transactions relating to the Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the preparation, printing, filing and distribution of the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto (but not, however, legal fees and expenses of Purchaser's counsel incurred in connection with any of the foregoing), (ii) the preparation (including, without limitation, word processing and duplication costs) and delivery of this Agreement and the other Operative Documents and all other agreements, memoranda, correspondence and other documents (but not, however, legal fees and expenses of Purchaser's counsel incurred in connection with any of the foregoing) and all preliminary and final Blue Sky memoranda prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by the Company of the Notes, (iv) the qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of Purchaser's counsel relating to such registration or qualification), (v) furnishing such copies of the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the purpose described aboveNotes (including, is granted without any fee limitation, printing and may not be assigned or transferredengraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, (viii) all expenses and listing fees in connection with the application for quotation of the Series C Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (ix) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for "book-entry" transfer and (x) the performance by the Company of its other obligations under this Agreement and the other Operative Documents.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that as a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, but not later than the Availability Date (as defined below), to make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; security holders and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters as follows:
(a) To The Company will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in a form reasonably approved the Prospectus, the price at which the Notes are to be purchased by you the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and to reallowances, if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Notes, and the Company will timely file such Prospectus supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act Act, but the Company will not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement file any amendments to the Registration Statement as in effect with respect to the Notes or any amendments or supplements to the Prospectus, or any Free Writing Prospectus prior (as defined in Rule 405 under the Act), unless it shall first have delivered copies of such amendments, supplements or Free-Writing Prospectus to any Time of Delivery that the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement, or if the Underwriters shall be disapproved by you have reasonably objected thereto promptly after reasonable notice receipt thereof; to the Company will immediately advise you, promptly after it receives the Underwriters or the Underwriters' counsel (i) when notice thereof, of is received from the time when SEC that any post-effective amendment to the Registration Statement has been filed become or becomes will become effective and (ii) of any order or any supplement communication suspending or preventing, or threatening to suspend or prevent, the Prospectus or any amended Prospectus has been filed offer and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order Notes or of any proceedings or examinations that may lead to such an order preventing or suspending the use of any Preliminary Prospectus communication, whether by or prospectus, of the suspension of SEC or any authority administering any state securities or Blue Sky law, as soon as the qualification of the Shares for offering or sale in any jurisdictionCompany is advised thereof, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to and will use its best efforts to prevent the issuance of any such order or communication and to obtain the withdrawal of such order;as soon as possible its lifting, if issued.
(b) Promptly from If, at any time to time to take such action as you may reasonably request to qualify the Shares 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 Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and when the Prospectus at such locations and in such quantities as you may from time relating to time reasonably request during such period following the date hereof that a prospectus Notes is required to be delivered in connection with offers or sales of Sharesunder the Act, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occurs 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 a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary during such period time to amend or supplement the Prospectus in order to comply with the Act or the Exchange ActRules and Regulations, to the Company promptly will notify you the Representative of such event and upon your request to file such document and to will promptly prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of file with the SEC, at its own expense, an amended Prospectus amendment or a supplement to the such Prospectus which 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 7 hereof.
(c) The Company will immediately inform the Underwriters (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriters, 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 documents relating to the Notes, in each case in such quantities as the Underwriters may reasonably request.
(e) The Company will cooperate with the Underwriters in listing the Class A Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriters 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 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 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 Underwriters 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 reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Representative terminating this Agreement pursuant to Section 9 or Section 10 hereof) or if this Agreement shall be terminated by the Representative because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket expenses (including fees and expenses of their counsel) reasonably incurred by it in connection herewith, but without any further obligation on the part of the Company for loss of profits or otherwise.
(k) The net proceeds from the sale of the Notes hereunder will be applied substantially in accordance with the description set forth in the Prospectus.
(l) Except as stated in this Agreement and in the Prospectus, the Company has not taken, nor will 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 Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Xxxxt Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust Stxxxxt Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents
(o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company.
(p) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, securityholders an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with 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 later of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to furnish the Registration Statement to you copies become effective prior to the date of all reports this Agreement and (iii) the date of the Company's most recent Annual Report or other communications (financial or other) furnished to stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or Form 10-K 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 prior to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and which will satisfy the Company shall at the time provisions of filing either pay to the Commission the filing fee for the Rule 462(bSection 11(a) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (SLC Student Loan Receivables I Inc)
Agreements of the Company. The Company agrees with each of the Underwritersseveral Underwriters as follows:
(a) To prepare the Prospectus in relation to the Securities in a form reasonably approved by you the Representative and to file such the Prospectus Supplement as required pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, the Prospectus relating to the applicable Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus after the date of this Agreement and prior to any Time of Delivery that the Closing Date for such Securities which shall be disapproved by you the Representative for such Securities promptly after reasonable notice thereof; to advise youthe Representative promptly of any such amendment or supplement after such Closing Date and furnish the Representative with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission 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 such Securities, and during such same period to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereofCommission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus prospectus or prospectusregistration statement relating to the Securities, of the suspension of the qualification of the Shares such Securities for offering or sale in any jurisdiction, of the initiation or threatening by the Commission of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or prospectus relating to the Securities or suspending any such qualification, promptly to use promptly its best reasonable efforts to obtain the withdrawal of such order;its withdrawal.
(b) Promptly from time The Company will furnish to time each of you, and to take counsel to the Underwriters such action number of copies as you may reasonably request to qualify the Shares 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 SharesRegistration Statement as originally filed with the Commission and of each amendment and supplement thereto, providedincluding consents, 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;financial statements and all exhibits thereto.
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date execution and delivery of this Agreement and from time Agreement, the Company has delivered to timeyou, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and without charge, in such quantities as you may have requested, copies of each Preliminary Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(d) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time reasonably request during for such period following as in the date hereof that opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with offers sales by any Underwriter or sales dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of Sharesthe Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the use of the Prospectus and of any amendment or supplement thereto in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, and, if both in connection with the delivery offering and sale of a prospectus the Securities 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 this such period and if at such of time any event shall have occurred as a result occur that in the judgment of which the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented would include an untrue statement of a material fact supplemented) or omit to state any material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for any other reason it shall be is necessary during such period to supplement or amend or supplement 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 Exchange ActCompany will forthwith prepare and file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to notify the Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you, as Representative of the 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.
(e) The Company will cooperate with you and upon your request to file with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies jurisdictions as you may from time designate and will file such consents to time reasonably request service of an amended Prospectus process or a supplement other documents necessary or appropriate in order to the Prospectus which will correct such statement or omission or effect such compliance;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.
(df) To The Company will make generally available to its stockholders and to deliver to you as soon as practicablesecurity holders a consolidated earnings statement, but in any event which need not later than eighteen months be audited, covering a twelve-month period commencing after the effective date of the Registration StatementStatement and ending not later than 15 months thereafter, an as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of the Company and the Subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration Statement;Commission thereunder (including, at the option of the Company, Rule 158).
(eg) During the Lock-Up Periodperiod 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.
(h) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to paragraph (c) of Section 10 hereof (with respect to any defaulting underwriter only) or by notice given by you terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representative for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(i) The Company will apply the net proceeds from the sale of the Securities substantially in accordance with the description set forth in the Prospectus.
(j) Except as provided in this Agreement, the Company will not, directly or indirectly, offer: (a) offer for sale, sell, offer to sell, contract to sell, pledge, grant any option to purchase pledge or otherwise sell dispose of (or dispose enter into any transaction or device which is designed to, or could be expected to, result in the disposition at any time in the future of), except as provided hereunder, or file with the Securities and Exchange Commission a registration statement under the Securities Act (other than the filing of any registration statement with the Commission on Form S-8 relating to the offering of securities pursuant to the terms of a plan in effect on the date of the Company that are substantially similar to closing of the Sharesoffering) relating to, including but not limited to any shares of Common Stock its common stock (including, without limitation, shares of common stock that may be issued upon exercise of any option or any other capital stock of the Company warrant) or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock exercisable for shares of the Company or any such substantially similar securities Company’s common stock (other than (i) pursuant the sale of the Securities to the Company’s benefit plans existing onRepresentative, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients sale of the Company’s securities agree in writing prior Premium Income Equity SecuritiesSM (“PIESSM) representing Mandatorily Convertible Senior Notes to the consummation underwriters therefor in the Company’s concurrent and separate PIES offering, (iii) any common stock issued, or options to purchase any common stock granted, under existing employee benefit plans, or (iv) any common stock issued under any non-employee director stock plan or dividend reinvestment plan), (b) enter into any swap, hedge or other derivatives transaction or arrangement that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of common stock, whether any such transaction, pursuant to an instrument transaction described in form and substance reasonably satisfactory to BBTCM, clause (a) or (b) above is to be bound settled by the provisions of this Section 5(e) for the remainder delivery of the Lock-Up Period as if Company’s common stock or other securities, in cash or otherwise or (c) publicly disclose the intention to enter into any such recipients were transaction or arrangement of the Company)type described in (a) or (b) above, in each case without the prior written consent of BBTCM; providedthe Representative for a period of 90 days after the date of the final Prospectus Supplement (the “Lock-Up Period”). Notwithstanding the foregoing, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases issues an earnings results release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 1617-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended shall continue to apply until the expiration of the 1817-day period beginning on the date of release issuance of the earnings results release or the occurrence of the material news or material event. The Company shall use reasonable efforts to cause certain of its executive officers to furnish the Representative, as applicableprior to the Closing Date, unless BBTCM waives, a letter or letters substantially in writing, such extension;the form of Exhibit A attached hereto.
(fk) During a period of three years from Except as stated in this Agreement and in the effective date Preliminary Prospectus and Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to 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 price of the Company is listed; and (ii) such additional information concerning Common Stock to facilitate the business and financial condition sale or resale of the Company as you may from time to time reasonably request;Securities.
(gl) To apply The Company will cause the net proceeds from shares of Common Stock which it agrees to sell under this Agreement to be listed on the sale of New York Stock Exchange on or before the Shares for the purposes set forth in the Prospectus;
(h) To Closing Date and will use its best efforts to list, subject to notice of issuance, the Shares maintain such listings on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredexchange.
Appears in 1 contract
Samples: Underwriting Agreement (Aquila Inc)
Agreements of the Company. The Company covenants and agrees with each of the UnderwritersInitial Purchaser as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchaser promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchaser, confirm such advice in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, writing (i) of the issuance by the Commission any state securities commission or other regulatory authority of any stop order or order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of that makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any Notes under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption from qualification of any Notes under any state securities or Blue Sky laws, the Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such period Order at the earliest possible time.
(b) To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. 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) Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum during such period as in the reasonable opinion of counsel for the Initial Purchaser the Preliminary Offering Memorandum or the Offering Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchaser for so long as any Initial Notes are outstanding unless the Initial Purchaser previously has been advised thereof and has not objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to the Initial Purchaser’s request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct Preliminary Offering Memorandum or the Offering Memorandum that in the reasonable opinion of the Initial Purchaser or counsel for the Initial Purchaser may be necessary or advisable in connection with such statement Exempt Resales or omission or effect such compliance;market-making activities.
(d) To make generally available If, during the period referred to its stockholders and to deliver to you as soon as practicablein 4(c) above, but in any event not later than eighteen months after occurs as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of counsel for the Company or counsel for the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the Act and Rule 158 under circumstances when such Preliminary Offering Memorandum or Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if in the Act covering a period of at least 12 months beginning after the effective date reasonable opinion of the Registration Statement;Initial Purchaser or counsel for the Initial Purchaser it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchaser and (ii) forthwith to prepare an appropriate amendment or supplement to such Preliminary Offering Memorandum or the Offering Memorandum so that the statements therein as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that such Preliminary Offering Memorandum or the Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, Initial Purchaser and counsel for the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchaser in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets Initial Notes under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchaser may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMExempt Resales; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results shall not be required in connection therewith to register or material news qualify as a foreign corporation where it is not now so qualified or a material event to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Company occurs Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction where it is not now so subject.
(2f) prior Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the expiration performance of the initial Lock-Up Periodobligations of the Company hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation duplication costs) and delivery of all agreements, correspondence and all other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance, transfer and delivery of the Initial Notes to the Initial Purchaser, (iv) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the Company announces that it will release earnings results during cost of printing and mailing a preliminary and final Blue Sky memorandum and the 16-day period beginning on reasonable fees and disbursements of counsel for the last day Initial Purchaser relating thereto in an amount not to exceed $7,000), (v) the furnishing of such copies of the initial Lock-Up PeriodPreliminary Offering Memorandum and the Offering Memorandum, then and all amendments and supplements thereto, as may be requested for use in each case connection with Exempt Resales, (vi) the Lock-Up Period will be extended until preparation of certificates for the expiration Notes (including, without limitation printing and engraving thereof), (vii) the fees, disbursements and expenses of the 18Company’s counsel and accountants, (viii) all fees and expenses (including fees and expenses of counsel) of the Company in connection with the approval of the Notes by DTC for “book-day period beginning entry” transfer, (ix) the rating of the Notes by rating agencies, (x) the reasonable fees and expenses of the Trustee and its counsel, (xi) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (xii) 50% of the cost of aircraft charter relating to “roadshow” travel, and other “roadshow” travel and related expenses reasonably incurred in connection with the marketing and sale of the Notes. Except as provided in this Section 4(f), the initial Purchaser shall pay its own expenses, including the fees and disbursements of its counsel and 50% of the cost of aircraft charter relating to “roadshow” travel.
(g) To use the proceeds from the sale of the Initial Notes in the manner described in the Offering Memorandum under the caption “Use of Proceeds” and to provide the Initial Purchaser with evidence of any application of such proceeds on the date of release each such application.
(h) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Notes.
(i) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the earnings results Initial Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or the occurrence Eligible Purchasers of the material news Initial Notes or material eventto take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(j) For so long as any of the 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 applicableamended (the “Exchange Act”), unless BBTCM waivesto make available to any holder or beneficial owner of Initial Notes in connection with any sale thereof and any prospective purchaser of such Initial Notes from such holder or beneficial owner, in writing, such extension;the information required by Rule 144A(d)(4) under the Act.
(fk) To cause the Exchange Offer to be made in the appropriate form to permit registered Exchange Notes to be offered in exchange for the Initial Notes and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(l) To comply with all of its agreements set forth in the Registration Rights Agreement and all of its agreements set forth in the representation letters to DTC relating to the approval of the Notes by DTC for “book-entry” transfer.
(m) To effect the inclusion of the Notes in The PORTALSM Market (“PORTAL”) and to obtain approval of the Initial Notes by DTC for “book-entry” transfer.
(n) During a period of three five years from following the effective date of the Registration StatementClosing Date, to furnish deliver without charge to you the Initial Purchaser, as it may reasonably request, promptly upon their becoming available, copies of (i) all reports or other communications publicly available information that the Company mails or otherwise makes available to its securityholders and (financial or otherii) furnished to stockholdersall reports, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to and proxy or information statements filed by the Company with the Commission or any national securities exchange on which and such other publicly available information concerning the Company or any class of securities its subsidiaries, including without limitation, press releases.
(o) Prior to the Closing Date, to furnish to the Initial Purchaser, as soon as they have been prepared in the ordinary course by the Company, copies of any unaudited interim financial statements for any period subsequent to the periods covered by the financial statements in the Offering Memorandum.
(p) 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 price of any security of the Company is listed; and to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company will not distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) such additional information concerning offering memorandum, including, without limitation, the business Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Notes.
(q) Prior to the Closing Date, not to issue any press release or other communications directly or indirectly or hold any press conference with respect to the issuance of the Initial Notes, the Company or any of its subsidiaries, the properties, business, results of operations, condition (financial condition or otherwise), affairs or prospects of the Company as you may from time or any of its subsidiaries, without the prior consent of the Initial Purchaser, such consent not to time reasonably request;be unreasonably withheld or delayed.
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(hr) To use its best commercially reasonable efforts to list, subject do and perform all things required or necessary to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of be done and performed under this Agreement, Agreement and the Company shall at other Operative Documents prior to or after the time of filing either pay Closing Date and to satisfy all conditions precedent on its part to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version delivery of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredInitial Notes.
Appears in 1 contract
Samples: Purchase Agreement (Innophos Investment Holdings, Inc.)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;.
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;.
(c) Prior To use its best efforts to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus, as the case may be, prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;.
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus (the "Lock-Up Period"), the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s 's benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, provided, that any shares issued pursuant to the Company's benefit plans shall be subject to restrictions in form and substance reasonably satisfactory to the Representatives prohibiting their resale prior to the expiration of the Lock-Up Period, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s 's securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCMthe Representatives, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of the BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless the BBTCM waiveswaive, in writing, such extension;.
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;Prospectus under the heading "Use of Proceeds."
(h) To use its best efforts to listlist for quotation, subject to notice of issuance, the Shares on the Nasdaq National Market;.
(i) Not to invest, or otherwise use the proceeds received by the Company from the sale of the Firm Shares or Optional Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act.
(j) To use its best efforts to assist the Underwriters with the enforcement of the Lock-Up Agreements, as hereinafter defined.
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.9:00 a.m., Washington, D.C. time, on the business day immediately following the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and.
(jl) Upon To comply with all of the reasonable request provisions of any Underwriterundertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act of 2002, and will use its best efforts to cause the Company's directors and officers, in their capacities as such, to furnishcomply with such laws, rules and regulations.
(m) If at any time during the 90 day period after the Registration Statement becomes effective, any rumor, publication or cause other event relating to or affecting the Company shall occur as a result of which, in the opinion of the Representatives, the market price of the Common Stock has been or is likely to be furnishedmaterially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such Underwriter an electronic version of rumor, publication or event.
(n) To effectuate the Company’s trademarks, servicemarks and corporate logo for use on mergers contemplated by the website, if any, operated Merger Agreements prior to the offering contemplated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredthis Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Comstock Homebuilding Companies, Inc.)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to the applicable Designated Securities in a form reasonably approved by you the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to such Securities and prior to any the Time of Delivery that for such Securities which shall be reasonably disapproved by you the Representatives for such Securities promptly after reasonable notice thereof; to advise youthe Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission 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 such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereofhereof, of the time when any amendment to 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 file promptly all reports and any definitive proxy filed, or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and mailed for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereoffiling, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusprospectus relating to the Securities, of the suspension of the qualification of the Shares such Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; information and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or prospectus relating to the Securities or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action as you the Representatives may reasonably request to qualify the Shares such Securities for offering and sale under the securities laws of such United States jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Sharessuch Securities, provided, that 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 or to subject itself to taxation for doing business in any jurisdiction, and provided further that the expense of maintaining any such qualification more than one year from the date of the Pricing Agreement relating to such Securities shall be at the expense of the Representatives for such Securities;
(c) Prior No later than the time agreed to 10:00 a.m., Richmond, Virginia time, on by the business day next succeeding Representatives following the date of this Agreement the applicable Pricing Agreement, and from time to timetime thereafter, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and as amended or supplemented in such quantities as you the Representatives may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Sharesrequest, and, if the delivery of a prospectus is required during this period at any time prior to the expiration of nine months after the date of the Pricing Agreement relating to the Securities in connection with the offering or sale of such Securities 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Exchange Trust Indenture Act, to notify you the Representatives and upon your their request and subject to subsection (a) of this Section 5 to file such document and to prepare and furnish without charge to each Underwriter and to any each other broker- dealer participating with them in securities the distribution of such Securities as many written and electronic copies as you the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and if the Representatives or any such other broker-dealer is required to deliver a prospectus in connection with sales of any of such Securities at any time nine months or more after the date of the Pricing Agreement relating to such Securities, upon the request of the Representatives but at the expense of the Underwriters or such other brokers, as the case may be, to prepare and deliver to the Representatives or such other broker-dealer as many copies as the Representatives may request of an amended Prospectus or supplement to the Prospectus complying with Section 10 (a) (3) of the Act;
(d) To make generally available to its stockholders and to deliver to you securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration StatementStatement (as defined in Rule 158(c)), an earnings earning statement of the Company and the Subsidiaries its subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration StatementCommission thereunder (including at the option of the Company Rule 158);
(e) During the Lock-Up Periodperiod beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the earlier of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company shall notby the Representatives or (ii) the Time of Delivery for such Designated Securities, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any debt securities of the Company that which mature more than one year after such Time of Delivery and which are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company)Designated Securities, without the prior written consent of BBTCMthe Representatives; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;and
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b)) with respect to the Designated Securities, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.P.M., Washington, D.C. time, on the date of this Agreementthe Pricing Agreement relating to the Designated Securities, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (Monsanto Finance Canada Co.)
Agreements of the Company. The Company covenants and agrees with each of the UnderwritersUnderwriter as follows:
(a) To prepare the a Prospectus in a form reasonably approved by you the Underwriter containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Securities Act, and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no amendment or supplement to the Registration Statement Statement, the Disclosure Package or the Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise youthe Underwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you the Underwriter with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by advise the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise youUnderwriter, 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 prospectusProspectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the 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 Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;.
(b) Promptly from time to time to take such action as you the Underwriter may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you the Underwriter may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the SharesSecurities, provided, 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;.
(c) Prior to 10:00 a.m., Richmond, Virginia timeEastern Time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and Prospectus in Richmond, Virginia (or such other place as the Prospectus at such locations and Underwriter may designate) in such quantities as you the Underwriter may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Sharesrequest, and, if the delivery of a prospectus is required during this period at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Securities Act, to notify you the Underwriter and upon your the Underwriter’s request to file such document and to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many written and electronic copies as you the Underwriter may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;, and in case the Underwriter is required to deliver a Prospectus in connection with sales of any of the Securities 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, to prepare and deliver to the Underwriter as many copies as they may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) To make generally available to its stockholders and to deliver to you securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and Rule 158 under the Act covering a period of at least 12 months beginning after the effective date of the Registration Statement;rules and regulations thereunder.
(e) During the Lock-Up Periodperiod beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, the Company shall not, not to directly or indirectly, offer, sell, offer to sell, contract or grant any option to sell, pledge, grant any option to purchase transfer or establish an open “put equivalent position” within the meaning of Rule 16a-l(h) under the Exchange Act, or otherwise sell dispose of or dispose transfer, or announce the offering of, or file a registration statement under the Securities Act in respect of, except as provided hereunder, any securities of the Company that are substantially similar to the SharesSecurities, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock such substantially similar securities, without your prior written consent. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any shares of Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company or (D) any such substantially similar securities (other than (i) pursuant to shares of Common Stock issued by the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Company in connection with the a dividend reinvestment plan or an acquisition by or merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;.
(f) During a period of three five years from the effective date of the Registration Statement, to make available on XXXXX or furnish to you the Underwriter copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you the Underwriter (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 the Underwriter may from time to time reasonably request;.
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon on Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, Eastern time on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act; and.
(h) To use its best efforts to list for quotation the Securities on the Nasdaq Capital Market.
(i) Until completion of the distribution of the Securities, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Commission thereunder.
(j) Upon That unless it obtains the reasonable request prior consent of any the Underwriter, to furnishand the Underwriter represents and agree that, or cause to be furnished, to such Underwriter an electronic version unless it obtains the prior consent of the Company’s trademarks, servicemarks they have not made and corporate logo for use on will not make any offer relating to the websiteSecurities that would constitute an Issuer-Represented Free Writing Prospectus and have complied and will comply with the requirements of Rule 433 applicable to any Issuer-Represented Free Writing Prospectus, if anyincluding where and when required timely filing with the Commission, operated by such Underwriter legending and record keeping.
(k) To apply the net proceeds from the sale of the Securities for the purpose of facilitating purposes set forth in the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredProspectus.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that as a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, but not later than the Availability Date (as defined below), to make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by Statement which will satisfy the provisions of this Section 5(e11(a) of the Act (for the remainder purpose of this subsection 5(d) only, "Availability Date" means the 45th day after the end of the Lock-Up Period as if such recipients were fourth fiscal quarter following the Company), without the prior written consent of BBTCM; provided, however, fiscal quarter that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from includes the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholdersexcept that, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with if such fourth fiscal quarter is 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version last quarter of the Company’s trademarks's fiscal year, servicemarks and corporate logo for use on "Availability Date" means the website, if any, operated by 90th day after the end of such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.fourth fiscal quarter);
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its reasonable best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, to make generally available to its stockholders shareholders (within the meaning of Rule 158 under the Act) and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statementyou, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement; provided that, so long as the Company continues to be subject to the reporting requirements under Section 13 or 15(d) of the Exchange Act, the Company shall not be required to make available any such earnings statement other than as included in periodic reports filed with the Commission as required by such provisions of the Exchange Act;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Securities to be sold by the Company hereunder or pursuant to the Company’s benefit employee stock option plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the your prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionconsent;
(f) During a period of three 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 distributed to stockholdersshareholders generally, and to 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;; and
(g) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (Culp Inc)
Agreements of the Company. The Company agrees with each of the Underwritersseveral Underwriters as follows:
(a) To prepare the Prospectus in relation to the Securities in a form reasonably approved by you the Representatives and to file such the Prospectus Supplement as required pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, the Prospectus relating to the applicable Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus after the date of this Agreement and prior to any Time of Delivery that the Closing Date for such Securities which shall be disapproved by you the Representatives for such Securities promptly after reasonable notice thereof; to advise youthe Representatives promptly of any such amendment or supplement after such Closing Date and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission 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 such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereofCommission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus prospectus or prospectusregistration statement relating to the Securities, of the suspension of the qualification of the Shares such Securities for offering or sale in any jurisdiction, of the initiation or threatening by the Commission of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or prospectus relating to the Securities or suspending any such qualification, promptly to use promptly its best reasonable efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time The Company will furnish to time each of you, and to take counsel to the Underwriters such action number of copies as you may reasonably request to qualify the Shares 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 each of the SharesRegistration Statement as originally filed with the Commission and of each amendment and supplement thereto, providedincluding consents, 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 jurisdictionfinancial statements and all exhibits thereto;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date execution and delivery of this Agreement and from time Agreement, the Company has delivered to timeyou, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and without charge, in such quantities as you may have requested, copies of each Preliminary Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(d) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time reasonably request during for such period following as in the date hereof that opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with offers sales by any Underwriter or sales dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of Sharesthe Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the use of the Prospectus 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, and, if both in connection with the delivery offering and sale of a prospectus the Securities 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 this such period and if at such of time any event shall have occurred as a result occur that in the judgment of which the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for any other reason it shall be is necessary during such period to supplement or amend or supplement 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 Exchange ActCompany will forthwith prepare and file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to notify the Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you, as Representatives of the 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.
(e) The Company will cooperate with you and upon your request to file with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies jurisdictions as you may from time designate and will file such consents to time reasonably request service of an amended Prospectus process or a supplement other documents necessary or appropriate in order to the Prospectus which will correct such statement or omission or effect such compliance;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.
(df) To The Company will make generally available to its stockholders and to deliver to you as soon as practicablesecurity holders a consolidated earnings statement, but in any event which need not later than eighteen months be audited, covering a twelve-month period commencing after the effective date of the Registration StatementStatement and ending not later than 15 months thereafter, an as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of the Company and the Subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration Statement;Commission thereunder (including, at the option of the Company, Rule 158).
(eg) During the Lock-Up Periodperiod of five years hereafter, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to deliver to you (i) as soon as they are available, copies a copy of any reports and financial statements furnished each report of the Company mailed to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; Commission, and (ii) from time to time such additional other information concerning the business and financial condition of the Company as you may from time to time reasonably request;.
(gh) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to paragraph (c) of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(i) The Company will apply the net proceeds from the sale of the Shares for Securities substantially in accordance with the purposes description set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and.
(j) Upon For a period beginning on this date and ending on the reasonable request of Closing Date, the Company will not, directly or indirectly, sell, contract to sell, grant any Underwriteroption to purchase, to furnishissue any instrument convertible into or exchangeable for, or cause to be furnishedotherwise transfer or dispose of, to such Underwriter an electronic version any debt securities of the Company’s trademarksCompany or any of its subsidiaries (each, servicemarks a "SUBSIDIARY" and corporate logo for use on collectively the website"SUBSIDIARIES"), if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredexcept with your prior consent.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to the applicable Designated Securities in a form reasonably approved by you the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to such Securities and prior to any the Time of Delivery that for such Securities which shall be reasonably disapproved by you the Representatives for such Securities promptly after reasonable notice thereof; to advise youthe Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission 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 such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereofhereof, of the time when any amendment to 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 file promptly all reports and any definitive proxy filed, or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and mailed for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereoffiling, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusprospectus relating to the Securities, of the suspension of the qualification of the Shares such Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; information and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or prospectus relating to the Securities or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action as you the Representatives may reasonably request to qualify the Shares such Securities for offering and sale under the securities laws of such United States jurisdictions as you the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Sharessuch Securities, provided, that 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 or to subject itself to taxation for doing business in any jurisdiction, and provided further that the expense of maintaining any such qualification more than one year from the date of the Pricing Agreement relating to such Securities shall be at the expense of the Representatives for such Securities;
(c) Prior No later than the time agreed to 10:00 a.m., Richmond, Virginia time, on by the business day next succeeding Representatives following the date of this Agreement the applicable Pricing Agreement, and from time to timetime thereafter, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and as amended or supplemented in such quantities as you the Representatives may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Sharesrequest, and, if the delivery of a prospectus is required during this period at any time prior to the expiration of nine months after the date of the Pricing Agreement relating to the Securities in connection with the offering or sale of such Securities 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Exchange Trust Indenture Act, to notify you the Representatives and upon your their request and subject to subsection (a) of this Section 5 to file such document and to prepare and furnish without charge to each Underwriter and to any each other broker- dealer participating with them in securities the distribution of such Securities as many written and electronic copies as you the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and if the Representatives or any such other broker-dealer is required to deliver a prospectus in connection with sales of any of such Securities at any time nine months or more after the date of the Pricing Agreement relating to such Securities, upon the request of the Representatives but at the expense of the Underwriters or such other brokers, as the case may be, to prepare and deliver to the Representatives or such other broker-dealer as many copies as the Representatives may request of an amended Prospectus or supplement to the Prospectus complying with Section 10 (a) (3) of the Act;
(d) To make generally available to its stockholders and to deliver to you securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration StatementStatement (as defined in Rule 158(c)), an earnings earning statement of the Company and the Subsidiaries its subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration StatementCommission thereunder (including at the option of the Company Rule 158);
(e) During the Lock-Up Periodperiod beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the earlier of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company shall notby the Representatives or (ii) the Time of Delivery for such Designated Securities, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any debt securities of the Company that which mature more than one year after such Time of Delivery and which are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company)Designated Securities, without the prior written consent of BBTCMthe Representatives; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;and
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b)) with respect to the Designated Securities, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.P.M., Washington, D.C. time, on the date of this Agreementthe Pricing Agreement relating to the Designated Securities, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwritersyou that:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orIt will advise DLJ promptly and, if applicablerequested by DLJ, confirm such earlier time as may be required by Rule 430A(a)(3advice in writing, (i) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 4(f), of or the initiation or threatening of any proceeding by any state securities commission or any other federal or state regulatory authority for any such purpose, or purpose and (ii) of the happening of any request by event during the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; andperiod referred to in Section 4(e), in the event of the issuance of which makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Offering Memorandum untrue or omit which requires the making of any additions to state any material fact necessary or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, 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 the Securities under any Federal or state securities or Blue Sky laws, orand, if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of the Securities under any state securities or Blue Sky laws, the Company shall use every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) It will furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Offering Memorandum, including all documents incorporated by reference therein, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period referred to in Section 4(e). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 6 hereof, the Company consents to the use of the Offering Memorandum, including all documents incorporated by reference therein, and any other reason amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) If, during the period referred to in Section 4(e), any event shall occur as a result of which it shall be becomes necessary during such period to amend or supplement the Prospectus Offering Memorandum in order to make the statements therein, in the light of the circumstances when such Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any law, it will promptly prepare an appropriate amendment or supplement to the Act Offering Memorandum so that the statements in the Offering Memorandum, as so amended or supplemented, will not, in the Exchange Actlight of the circumstances existing as of the date the Offering Memorandum is so delivered, to be misleading, and will comply with applicable law, and will promptly notify you of such event and upon your request to file such document and to prepare amendment or supplement and furnish to you without charge to each Underwriter and to any dealer in securities as many written and electronic such number of copies thereof as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;request.
(d) To make generally available Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, it will pay and be responsible for all reasonable costs, charges, expenses, fees and taxes incurred in connection with or incident to its stockholders (i) the preparation, printing, filing, distribution and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date delivery of the Registration StatementOffering Memorandum and all amendments and supplements thereto, an earnings statement (ii) the issuance and delivery of the Company Securities, (iii) the printing and delivery of this Agreement, the Subsidiaries (which need not be audited) complying Indenture and all other agreements, memoranda, reports, correspondence and other documents printed, distributed and delivered in connection with Section 11(a) the offering of the Act Securities, (iv) the registration or qualification of the Securities for offer and Rule 158 sale under the Act covering a period of at least 12 months beginning after the effective date securities or Blue Sky laws of the Registration Statement;jurisdictions referred to in paragraph (f) below (including, in each case, the reasonable fees and disbursements of counsel relating to such registration or qualification and memoranda relating thereto and any filing fees in connection therewith), (v) furnishing such copies of the Offering Memorandum and all amendments and supplements to any of them, including any document incorporated by reference therein, as may be reasonably requested by the Initial Purchasers or by dealers to whom Securities may be sold, (vi) any filing with the National Association of Securities Dealers, Inc. (the "NASD") in connection with the offering of the Securities (including, without limitation, any filing fees in connection therewith but excluding the fees of Xxxxxxxx & Xxxxxxxx, legal counsel to the Underwriters ("Initial Purchasers' Counsel")), (vii) the application for quotation of the Securities in the NASD Automated Quotation System - PORTAL ("PORTAL"), (viii) the rating of the Securities by investment rating agencies, (ix) any "qualified independent underwriter" as required by Rule 2720 of the NASD (including fees and disbursements of counsel for such qualified independent underwriter) and (x) the performance by the Company of its other obligations under this Agreement, including (without limitation) the fees of the Trustee, the cost of its respective personnel and other internal costs, the cost of printing and engraving the certificates representing the Securities, and all expenses incident to the sale and delivery of the Securities to the Initial Purchasers.
(e) During such period as in the Lock-Up Periodreasonable judgment of the Initial Purchasers an Offering Memorandum is required (or would be required if the sales were registered under the Securities Act) to be delivered in connection with Exempt Resales by the Initial Purchasers, it will not make any amendment or supplement to the Offering Memorandum (other than any document required to be filed under the Securities Exchange Act of 1934, as amended, including the rules and regulations thereunder (collectively, the "Exchange Act") that upon filing is deemed to be incorporated by reference therein) of which the Initial Purchasers shall not previously have been advised and provided a copy prior to the filing thereof or to which the Initial Purchasers shall reasonably object unless in the opinion of legal counsel to the Company such amendment or supplement is required by law to be filed; it will furnish to you at or prior to the filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Offering Memorandum; and it will prepare, promptly upon the Initial Purchasers' reasonable request, any amendment or supplement to the Offering Memorandum which may be necessary or advisable in connection with such Exempt Resales and to which the Company shall notnot reasonably object.
(f) Prior to the sale of all Securities pursuant to Exempt Resales as contemplated hereby, directly it will cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the registration or indirectlyqualification of the Securities for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or Blue Sky laws of such United States jurisdictions as the Initial Purchasers may request. The Company will continue such qualification in effect so long as required by law for Exempt Resales and will file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification (PROVIDED, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified nor 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).
(g) So long as any of the Securities remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, it will make available to any holder of Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(h) It will file timely all reports and any definitive proxy or information statement required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and it will use its best efforts to effect the inclusion of the Securities in PORTAL and to maintain the listing of the Securities on PORTAL for so long as the Securities are outstanding.
(i) To the extent permitted by law, it will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities.
(j) It will use the proceeds from the sale of the Securities in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(k) During the period beginning on the date of this Agreement and continuing to and including the Closing Date, it will not offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any debt securities of the Company that are substantially similar or warrants, rights, or options to the Shares, including but not limited to any shares of Common Stock or any other capital stock purchase debt securities of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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; Securities and (ii) such additional information concerning commercial paper issued in the business and financial condition ordinary course of the Company as you may from time to time reasonably request;business), without your prior written consent.
(gl) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To It will use its best efforts to list, subject do and perform all things required to notice of issuance, be done and performed under this Agreement by it prior to or after the Shares Closing Date and will use its reasonable best efforts to satisfy all conditions precedent on the Nasdaq National Market;
(i) If the Company elects its part to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay be satisfied prior to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version delivery of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredSecurities.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersPlacement Agent:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of the Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, ; of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Placement Agent with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable after the effective date of the Registration Statement, to make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statementyou, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities shares of the Company that are substantially similar to the Shares, including but not limited to any Company's Common Stock or securities exercisable for or convertible into shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Shares or pursuant to the Company’s benefit employee stock option or stockholder dividend reinvestment plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, Agreement or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect pursuant to such merger or acquisition, so long as the recipients of the Company’s securities bona fide gifts to persons who agree in writing prior to with the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, donor to be bound by the provisions of this Section 5(erestriction) for the remainder of the Lock-Up Period as if such recipients were the Company), without the your prior written consent, which consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will shall not be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionunreasonably withheld;
(f) During a period of three 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 stockholders, and to 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 Board of Governors, the FDIC, the OCC, the Commission, any national securities exchange or quotation system on which any class of securities of the Company is listedlisted or included; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;; and
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Agency Agreement (CNB Holdings Inc)
Agreements of the Company. The Company agrees with each In further consideration of the Underwritersagreements of the Initial Purchaser herein contained, the Company covenants as follows:
(a) To prepare the Prospectus Preliminary Offering Memorandum and Offering Memorandum in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Actyou; to make no amendment or any supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Preliminary Offering Memorandum and Offering Memorandum which shall be disapproved by you your counsel upon legal grounds in writing, after consultation with you, promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file .
(b) To advise the Initial Purchaser promptly all reports and any definitive proxy or information statements required to be filed and, if requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchaser, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Series A Notes for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, of or the initiation or threatening of any proceeding by any state securities commission or any other federal or state regulatory authority for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of . The 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 preventing or suspending the use qualification or exemption of any Preliminary Prospectus Series A Notes under any state securities or prospectus or suspending any such qualificationBlue Sky laws, promptly to the Company shall use its best efforts to obtain the withdrawal or lifting of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify order at the Shares 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 Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;earliest possible time.
(c) Prior to 10:00 a.m., Richmond, Virginia New York City time, on the business day Business Day next succeeding the date of this Agreement Agreement, or as soon as otherwise mutually agreed, and from time to timetime thereafter, to furnish the Underwriters with written Initial Purchaser and electronic those persons identified by the Initial Purchaser to the Company as many copies of the Registration Statement Offering Memorandum, and the Prospectus at such locations and any amendments or supplements thereto, in such quantities as you the Initial Purchaser may from time reasonably request. Subject to time reasonably request during such period following the date hereof that a prospectus is 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 required to be delivered pursuant hereto, by the Initial Purchaser in connection with offers or sales of Shares, and, if the delivery of a prospectus is required during this period and if at Exempt Resales.
(d) Until such time as either of the Registration Statements shall be declared effective by the Commission, but in no event later than nine months after the date of the Offering Memorandum, any event shall have occurred as a result of which the Prospectus Offering Memorandum 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 light of the circumstances under which they were made when such Prospectus Offering Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary or desirable during such same period to amend or supplement the Prospectus in order to comply with the Act or the Exchange ActOffering Memorandum, to notify you and upon your request to file such document prepare and, subject to Section 5(a) and to prepare and 5(j) hereof, furnish without charge to each Underwriter Initial Purchaser and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus Offering Memorandum or a supplement to the Prospectus Offering Memorandum which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to listqualify the Series A Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may designate and to pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Initial Purchaser and their counsel for, reasonable filing fees and expenses in connection therewith (including the reasonable fees and disbursements of counsel to the Initial Purchaser and filing fees and expenses paid and incurred prior to the date hereof), provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or as a securities dealer or to file a general consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(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 on a consolidated basis, 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 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 any of the Series A Notes remain outstanding and during any period in which either the Company is not subject to notice Section 13 or 15(d) of issuancethe 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 Shares information required by Rule 144A(d)(4) under the Act.
(h) To pay all expenses, fees and taxes (other than transfer taxes on sales by the Nasdaq National Market;Initial Purchaser) in connection with the issuance and delivery of the Series A Notes, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (e) of this Section 5) of Skadden, Arps, Slate, Meagxxx & Xlom XXX, New York, New York, counsel to the Initial Purchaser, only in the events provided in paragraph (i) of this Section 5, the Initial Purchaser hereby agreeing to pay such fees and disbursements in any other event, and that except as provided in such paragraph (i), the Company shall not be responsible for any out-of-pocket expenses of the Initial Purchaser in connection with their services hereunder.
(i) If the Company elects Initial Purchaser shall not take up and pay for the Series A Notes due to rely upon Rule 462(b), the failure of the Company to comply with any of the conditions specified in Section 10 hereof, or, if this Agreement shall file a Rule 462(b) Registration Statement be terminated in accordance with the Commission provisions of Section 11(b) hereof prior to the Closing Date, to pay the reasonable fees and disbursements of Skadden, Arps, Slate, Meagxxx & Xlom XXX, counsel to the Initial Purchaser, and, if the Initial Purchaser shall not take up and pay for the Series A Notes due to the failure of the Company to comply with any of the conditions specified in compliance Section 10 hereof, to reimburse the Initial Purchaser for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $3,000, incurred in connection with Rule 462(b) the financing contemplated by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and.
(j) Upon During the period referred to in paragraph (d) of this Section 5, to not amend or supplement the Offering Memorandum unless the Company has furnished the Initial Purchaser and counsel to the Initial Purchaser with a copy for their review and comment a reasonable request time prior to filing and has reasonably considered any comments of the Initial Purchaser, or any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing, after consultation with the Initial Purchaser.
(k) During the period referred to in paragraph (d) of this Section 5, to furnish the Initial Purchaser with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(l) During the period referred to in paragraph (d) of this Section 5, to comply with all requirements under the Exchange Act relating to the filing with the Commission of its reports pursuant to Section 13 of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(m) To comply in all material respects with all of its agreements set forth in the Registration Rights Agreement.
(n) To obtain the approval of The Depository Trust Company ("DTC") for "book-entry" transfer of the Notes, and to comply in all material respects with all of its 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) Not to (or permit any affiliate to) sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any Underwritersecurity (as defined in the Act) that would be integrated with the sale of the Series A Notes to the Initial Purchaser or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series A Notes under the Act.
(p) Not to voluntarily claim, and to furnishactively resist any attempts to claim, or the benefit of any usury laws against the holders of any Notes.
(q) To cause the Exchange Offer to be furnishedmade in the appropriate form to permit Exchange Notes registered pursuant to the Act to be offered in exchange for the Series A Notes and to comply in all material respects with all applicable federal and state securities laws in connection with the Exchange Offer.
(r) During the period of two years after the Closing Date, to such Underwriter an electronic version not to, and not permit any of its affiliates (as defined in Rule 144 under the Act) to, resell any of the Company’s trademarks, servicemarks and corporate logo for use on Notes which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(s) To apply the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering net proceeds of the Shares; provided, however, that offering and sale of the foregoing license shall be used solely for Series A Notes in the purpose described above, is granted without any fee and may not be assigned or transferredmanner set forth in the Offering Memorandum under the caption "Use of Proceeds".
Appears in 1 contract
Samples: Purchase Agreement (Panhandle Eastern Pipe Line Co)
Agreements of the Company. The Company covenants and agrees with each of the Underwriters:
(a) Initial Purchaser as follows: To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchaser promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchaser, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority or (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of that makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements of material fact therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall make every reasonable effort to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws, the Company shall make every reasonable effort to obtain the withdrawal or lifting of such period order at the earliest possible time. To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. 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. Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum prior to the Closing Date unless the Initial Purchaser shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy of such amendment or supplement. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to the Initial Purchaser's reasonable request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Preliminary Offering Memorandum or omission the Offering Memorandum that may be necessary or effect such compliance;
(d) To make generally available advisable in connection with Exempt Resales. If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resale, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock judgment of the Company or any securities that are convertible into or exchangeable for, or that represent in the right to receive, Common Stock or any other capital stock reasonable opinion of counsel for the Company or any the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements of material fact therein, in the light of the circumstances when such substantially similar securities (other than Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum to comply with applicable law, (i) pursuant to promptly notify the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or Initial Purchaser and (ii) to promptly prepare an appropriate amendment or supplement to such Preliminary Offering Memorandum or Offering Memorandum so that the statements of material fact therein as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that such Preliminary Offering Memorandum or Offering Memorandum will comply with applicable law. To cooperate with the Initial Purchaser and counsel for the Initial Purchaser in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets Series A Notes under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchaser may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMExempt Resales; provided, however, that if (1) during the last 17 days Company shall not be required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or taxation, in each case, in any jurisdiction where it is not now so subject. Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the initial Lock-Up Periodobligations of the Company hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto (other than legal fees and expenses of counsel to the Initial Purchaser in connection with any of the foregoing), (ii) the preparation (including, without limitation, duplication costs) and delivery of all preliminary and final Blue Sky Memoranda and all other agreements, memoranda, correspondence and all other documents prepared and delivered in connection herewith and with the Exempt Resales (including Blue Sky filing fees, but excluding legal fees and expenses of counsel to the Initial Purchaser in connection with any of the foregoing), (iii) the issuance, transfer and delivery by the Company of the Series A Notes to the Initial Purchaser, (iv) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the Company releases earnings results or material news or cost of printing and mailing a material event Blue Sky Memorandum and the reasonable fees and disbursements of counsel for the Initial Purchaser relating thereto), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the Notes (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company's accountants, (viii) all expenses and listing fees in connection with the application for quotation of the Notes in the National Association of Securities Dealers, Inc. ("NASD") Private Offering, Resales and Trading through Automated Linkages ("PORTAL") market (but excluding legal fees and expenses of counsel to the Initial Purchaser in connection with the foregoing), (ix) all fees and expenses (including fees and expenses of counsel) of the Company occurs in connection with the approval of the Notes by DTC for "book-entry" transfer, (x) rating the Notes by rating agencies, (xi) the reasonable fees and expenses of the Trustee and its counsel, (xii) the performance by the Company of its other obligations under this Agreement and the other Operative Documents, (xiii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Notes, and (xiv) the fees, disbursements and expenses of the Company's counsel; provided, however, that, except as provided in this Section 4(f) or (2) Section 11(d), the Initial Purchaser shall pay its own costs and the costs and expenses of its counsel. To use the proceeds from the sale of the Series A Notes in the manner described in the Offering Memorandum under the caption "Use of Proceeds." Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Notes. To do and perform all things required to be done and performed under this Agreement by it prior to or after the expiration Closing Date and to make every reasonable effort to satisfy all conditions precedent on its part to the delivery of the initial Lock-Up PeriodSeries A Notes pursuant to the directions of the Initial Purchaser. Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Series A Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser of the Series A Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act. For so long as any of the Notes remain outstanding and during any period in which the Company announces that it will release earnings results during the 16-day period beginning on the last day is not subject to Section 13 or 15(d) of the initial Lock-Up PeriodExchange Act, then to make available to any holder or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of such Notes from such holder or beneficial owner, in each case upon request, the Lock-Up Period will information required by Rule 144A(d)(4) under the Act. To use its best efforts to cause the A/B Exchange Offer to be extended until made in the expiration of appropriate form to permit the 18-day period beginning on Series B Notes to be offered in exchange for the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholdersSeries A Notes, and to use its reasonable efforts to cause the 11.25% Note Exchange Offer to be made in the appropriate form to permit the Exchange Notes to be offered in exchange for the 13% Notes, and in each case to comply with all applicable federal and state securities laws in connection with the applicable Exchange Offer. To make every reasonable effort to effect the inclusion of the Notes in the PORTAL market in accordance with the rules and regulations of the NASD, relating to trading in the PORTAL market, and to make every reasonable effort to obtain approval of the Series A Notes by DTC for "book-entry" transfer. For so long as any of the Notes remain outstanding, to deliver without charge to you (i) the Initial Purchaser, as soon as they are it may reasonably request, promptly upon their becoming available, copies of any (i) all publicly available reports or other publicly available information that the Company shall mail or otherwise make available to its security holders and (ii) all reports, financial statements furnished to and proxy or information statements filed by the Company with the Commission or any national securities exchange on which and such other publicly available information concerning the Company including, without limitation, press releases. Prior to the Closing Date, to furnish to the Initial Purchaser, as soon as it has been prepared in the ordinary course by the Company or its accountants, as the case may be, copies of any class unaudited interim financial statements for any period subsequent to the periods covered by the financial statements appearing in the Offering Memorandum. 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 securities the price of any security of the Company is listed; to facilitate the sale or resale of the Notes. Except as permitted by the Act and except as contemplated by this Agreement and the Other Operative Documents, the Company will not distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) such additional information concerning offering memorandum, including, without limitation, the business Offering Memorandum or (iii) other offering material in connection with the offering 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 Shares for Notes. To comply with all of its agreements set forth in this Agreement, the purposes Indenture, the Exchange and Registration Rights Agreement and the other Operative Documents to which it is a party and all agreements set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice representation letters of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay DTC relating to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version approval of the Company’s trademarks, servicemarks and corporate logo Notes by DTC for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on"book-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredentry" transfer.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the UnderwritersInitial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; andevent that, in the event reasonable opinion of counsel to the issuance of Company, makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Offering Memorandum untrue in any material fact necessary respect or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, ormisleading in any material respect. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus in order Offering Memorandum prior to comply with the Act Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy of the applicable amendment or supplement. The Company shall promptly prepare, upon the Exchange ActInitial Purchasers' request, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Offering Memorandum that may be necessary or omission or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resale, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of either counsel to the Company or counsel to the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the Act circumstances when such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading in any material respect, or if it is necessary or advisable to amend or supplement the Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchasers of such occurrence and Rule 158 under (ii) forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the Act covering a period of at least 12 months beginning after statements therein as so amended or supplemented will not, in the effective date light of the Registration Statement;circumstances when it is so delivered, be misleading in any material respect, or so that such Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Initial Purchasers and counsel to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchasers in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets Notes under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchasers may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company)Exempt Resales; PROVIDED, without the prior written consent of BBTCM; provided, however, HOWEVER that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results shall not be required in connection therewith to register or material news qualify as a foreign corporation where it is not now so qualified or a material event to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Company occurs Offering Memorandum or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waivesExempt Resales, in writing, such extension;any jurisdiction where it is not now so subject.
(f) During a period of three years from Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective date or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the Registration Statementobligations of the Company hereunder, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you including in connection with: (i) as soon as they are availablethe preparation, printing, filing and distribution of the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the issuance, transfer and delivery by the Company of the Notes to the Initial Purchasers, (iii) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of preparing, printing and mailing a preliminary and final Blue Sky Memorandum and the reasonable fees and disbursements of counsel to the Initial Purchasers relating thereto), (iv) furnishing such copies of any reports the Offering Memorandum, and financial statements furnished to or filed all amendments and supplements thereto, as may be requested by the Initial Purchasers for use in connection with Exempt Resales, (v) the preparation of certificates for the Notes, (vi) the fees, disbursements and expenses of the Company's counsel and accountants, (vii) all expenses and listing fees in connection with the Commission or any national securities exchange on which any class application for quotation of securities the Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (viii) all fees and expenses (including fees and expenses of counsel to the Company) of the Company is listed; in connection with the approval of the Notes by DTC for "book-entry" transfer, (ix) the reasonable fees and expenses of the Trustee and its counsel in connection with the Indenture and the Notes, (x) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (iixi) such additional information concerning "roadshow" travel and other expenses incurred in connection with the business marketing 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredNotes.
Appears in 1 contract
Samples: Purchase Agreement (Covad Communications Group Inc)
Agreements of the Company. The Company agrees with each of the Underwritersyou as follows:
(a) To prepare the Prospectus in a form reasonably approved by advise you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orpromptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Purchaser, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Series C Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purposestate securities commission or other regulatory authority, and (ii) of any change in the Company's condition (financial or otherwise), business, prospects, properties, net worth or results of operations, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance happening of any stop order or of event that makes any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Offering Memorandum untrue or omit that requires the making of any additions to state any material fact necessary or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, 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 of the Series C Notes under any state securities or Blue Sky laws, orand if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Series C Notes under any state securities or Blue Sky laws, if for the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you, without charge, with as many copies of the Offering Memorandum, and any other reason it shall be necessary during such period amendments or supplements thereto, as you may reasonably request. The Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto, by you in connection with offers or sales of the Series C Notes.
(c) Not to amend or supplement the Prospectus in order Offering Memorandum prior to comply with the Act or the Exchange ActClosing Date, to notify unless you shall previously have been advised thereof and shall not have objected thereto after being furnished a copy thereof. The Company shall promptly prepare, upon your request to file such document and to prepare and furnish without charge to each Underwriter and to request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Offering Memorandum that may be necessary or omission or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available to its stockholders and to deliver to you as soon as practicableIf, but in after the date hereof, any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement reasonable judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable judgment of either of you or of your counsel, it becomes necessary to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the Act and Rule 158 under circumstances when the Act covering Offering Memorandum is delivered to an Eligible Purchaser which is a period of at least 12 months beginning after prospective purchaser, not misleading, or if it is necessary to amend or supplement the effective date Offering Memorandum to comply with applicable law, forthwith to prepare an appropriate amendment or supplement to the Offering Memorandum so that the statements therein as so amended or supplemented will not, in the light of the Registration Statement;circumstances when it is so delivered, be misleading, or so that the Offering Memorandum will comply with applicable law.
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) To cooperate with you and your counsel in connection with the merger with or acquisition of another corporation or entity or the acquisition qualification of the assets Securities under the securities or properties Blue Sky laws of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 jurisdictions as you may from time request and to time reasonably request;
(g) To apply continue such qualification in effect for as long as may be necessary to complete the net proceeds from the sale distribution of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the SharesExempt Resales; provided, however, that the foregoing license Company shall not be used solely required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or taxation, other than as to matters and transactions relating to the Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the printing, processing, filing, distribution and delivery of the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto, (ii) the printing, processing, execution, distribution and delivery of this Agreement, the other Transaction Documents, any memoranda describing state securities or Blue Sky laws and all other agreements, memoranda, correspondence and other documents printed, distributed and delivered in connection herewith and with the offer or sale of the Securities, (iii) the issuance and delivery by the Company of the Securities, (iv) the qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the fees and disbursements of your counsel relating to such registration or qualification and memoranda relating thereto and any filing fees in connection therewith), (v) furnishing such copies of the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the purpose described aboveSecurities (including, is granted without any fee limitation, printing and may not be assigned or transferredengraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, all expenses and listing fees in connection with the application for quotation of the Series C Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (ix) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC for "book-entry" transfer, (x) the performance by the Company of its other obligations under this Agreement and the other Transaction Documents and (xi) the rating of the Securities by investment rating agencies.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that as a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, but not later than the Availability Date (as defined below), to make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by Statement which will satisfy the provisions of this Section 5(e11(a) of the Act (for the remainder purpose of this subsection 5(d) only, "Availability Date" means the 45th day after the end of the Lock-Up Period as if such recipients were fourth fiscal quarter following the Company), without the prior written consent of BBTCM; provided, however, fiscal quarter that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from includes the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholdersexcept that, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with if such fourth fiscal quarter is 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version last quarter of the Company’s trademarks's fiscal year, servicemarks and corporate logo for use on "Availability Date" means the website, if any, operated by 90th day after the end of such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.fourth fiscal quarter);
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwritersseveral Underwriters as follows:
(a) To prepare the Prospectus in relation to the Securities in a form reasonably approved by you the Representatives and to file such the Prospectus Supplement as required pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, the Prospectus relating to the applicable Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus after the date of this Agreement and prior to any Time of Delivery that the Closing Date for such Securities which shall be disapproved by you the Representatives for such Securities promptly after reasonable notice thereof; to advise youthe Representatives promptly of any such amendment or supplement after such Closing Date and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission 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 such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereofCommission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus prospectus or prospectusregistration statement relating to the Securities, of the suspension of the qualification of the Shares such Securities for offering or sale in any jurisdiction, of the initiation or threatening by the Commission of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or prospectus relating to the Securities or suspending any such qualification, promptly to use promptly its best reasonable efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time The Company will furnish to time each of you, and to take counsel to the Underwriters such action number of copies as you may reasonably request to qualify the Shares 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 SharesRegistration Statement as originally filed with the Commission and of each amendment and supplement thereto, providedincluding consents, 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 jurisdictionfinancial statements and all exhibits thereto;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date execution and delivery of this Agreement and from time Agreement, the Company has delivered to timeyou, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and without charge, in such quantities as you may have requested, copies of each Preliminary Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(d) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time reasonably request during for such period following as in the date hereof that opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with offers sales by any Underwriter or sales dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of Sharesthe Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the use of the Prospectus and of any amendment or supplement thereto in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, and, if both in connection with the delivery offering and sale of a prospectus the Securities 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 this such period and if at such of time any event shall have occurred as a result occur that in the judgment of which the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented would include an untrue statement of a material fact supplemented) or omit to state any material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for any other reason it shall be is necessary during such period to supplement or amend or supplement 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 Exchange ActCompany will forthwith prepare and file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to notify the Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you, as Representatives of the 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.
(e) The Company will cooperate with you and upon your request to file with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies jurisdictions as you may from time designate and will file such consents to time reasonably request service of an amended Prospectus process or a supplement other documents necessary or appropriate in order to the Prospectus which will correct such statement or omission or effect such compliance;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.
(df) To The Company will make generally available to its stockholders and to deliver to you as soon as practicablesecurity holders a consolidated earnings statement, but in any event which need not later than eighteen months be audited, covering a twelve-month period commencing after the effective date of the Registration StatementStatement and ending not later than 15 months thereafter, an as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of the Company and the Subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration Statement;Commission thereunder (including, at the option of the Company, Rule 158).
(eg) During the Lock-Up Periodperiod of five years hereafter, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to deliver to you (i) as soon as they are available, copies a copy of any reports and financial statements furnished each report of the Company mailed to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; Commission, and (ii) from time to time such additional other information concerning the business and financial condition of the Company as you may from time to time reasonably request;.
(gh) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to paragraph (c) of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(i) The Company will apply the net proceeds from the sale of the Shares for Securities substantially in accordance with the purposes description set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and.
(j) Upon For a period beginning on this date and ending on the reasonable request of Closing Date, the Company will not, directly or indirectly, sell, contract to sell, grant any Underwriteroption to purchase, to furnishissue any instrument convertible into or exchangeable for, or cause to be furnishedotherwise transfer or dispose of, to such Underwriter an electronic version any debt securities of the Company’s trademarksCompany or any of its subsidiaries (each, servicemarks a "SUBSIDIARY" and corporate logo for use on collectively the website"SUBSIDIARIES"), if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredexcept with your prior consent.
Appears in 1 contract
Samples: Purchase Agreement (Aquila Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as As soon as practicable, but in any event not later than eighteen months practicable after the effective date of the Registration Statement, to make generally available to its shareholders and to deliver to you, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 120 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Securities or pursuant to the Company’s benefit employee stock option plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, Agreement or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect pursuant to such merger or acquisition, so long as the recipients of the Company’s securities bona fide gifts to persons who agree in writing prior to with the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, donor to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Companyrestriction), without the your prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionconsent;
(f) During a period of three 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 stockholdersshareholders, and to 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;; and
(g) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees ------------------------- with each of the UnderwritersInitial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Company Shares for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; andevent that, in the event reasonable opinion 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, promptly either counsel to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required or counsel to qualify as a foreign corporation or to file a general consent to service of process in the Initial Purchasers, makes any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Series F Preferred Stock (and the related Depositary Shares) under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any of the Company Shares, under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. 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 Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to the Initial Purchasers' request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Preliminary Offering Memorandum or omission the Offering Memorandum that may be necessary or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resale, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of either counsel to the Company or counsel to the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements therein, in the light of the Act circumstances when such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchasers and Rule 158 under (ii) forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the Act covering a period of at least 12 months beginning after statements therein as so amended or supplemented will not, in the effective date light of the Registration Statement;circumstances when it is so delivered, be misleading, or so that such Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Initial Purchasers and counsel to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchasers in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets Company Shares under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchasers may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the SharesExempt Resales; provided, however, that the foregoing license Company shall not be used solely required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated hereby are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all preliminary and final Blue Sky memoranda prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance, transfer and delivery by the Company of the Securities to the Initial Purchasers, (iv) the qualification or registration of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of counsel to the Initial Purchasers relating thereto), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the purpose described aboveSecurities (including, is granted without any fee limitation, printing and may not be assigned or transferredengraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, (viii) all expenses and listing fees in connection with the application for quotation of the Company Shares in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (ix) all fees and ---- ------ expenses (including fees and expenses of counsel to the Company) of the Company in connection with the approval of the Securities by DTC for "book-entry" transfer, (x) rating the Securities by rating agencies, (xi) the reasonable fees and expenses of the Transfer Agent and its counsel in connection with the Certificate of Designation, (xii) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (xiii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Securities (other than out-of-pocket expenses incurred by the Initial Purchasers for travel, meals and lodgings).
Appears in 1 contract
Samples: Depositary Share Purchase Agreement (Intermedia Communications Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;.
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;.
(c) Prior To use its best efforts to furnish the Underwriters with written, executed and electronic copies of the Registration Statement and the Prospectus, as the case may be, prior to 10:00 a.m., RichmondNew York City, Virginia New York time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary or appropriate during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;.
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus (the "Lock-Up Period"), the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s 's benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, provided, that any shares issued pursuant to the Company's benefit plans shall be subject to restrictions in form and substance reasonably satisfactory to the Representative prohibiting their resale prior to the expiration of the Lock-Up Period, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s 's securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCMthe Representative, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMthe Representative; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM the Representative waives, in writing, such extension;.
(f) During a period of three 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 stockholders, and to 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 Company Firm Shares for the purposes set forth in the Prospectus;Prospectus under the heading "Use of Proceeds."
(h) To use its best efforts to listlist for quotation, subject to notice of issuance, the Shares on the Nasdaq National Market;.
(i) Not to invest, or otherwise use the proceeds received by the Company from the sale of the Company Firm Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act.
(j) To use its best efforts to assist the Underwriters with the enforcement of the Lock-Up Agreements, as hereinafter defined.
(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.9:00 a.m., Washington, D.C. time, on the business day immediately following the date of this AgreementAgreement but in any event prior to the time confirmations are sent or given, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and.
(jl) Upon To comply with all of the reasonable request provisions of any Underwriterundertakings in the Registration Statement and with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act of 2002, and will use its best efforts to cause the Company's directors and officers, in their capacities as such, to furnishcomply with such laws, rules and regulations.
(m) If at any time during the 90 day period after the Registration Statement becomes effective, any rumor, publication or cause other event relating to or affecting the Company shall occur as a result of which, in the opinion of the Representative, the market price of the Common Stock has been or is likely to be furnishedmaterially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such Underwriter an electronic version of the Company’s trademarksrumor, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned publication or transferredevent.
Appears in 1 contract
Samples: Underwriting Agreement (Comstock Homebuilding Companies, Inc.)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that as a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, but not later than the Availability Date (as defined below), to make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by Statement which will satisfy the provisions of this Section 5(e11(a) of the Act (for the remainder purpose of this subsection 5(d) only, "Availability Date" means the 45th day after the end of the Lock-Up Period as if such recipients were fourth fiscal quarter following the Company), without the prior written consent of BBTCM; provided, however, fiscal quarter that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from includes the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the websiteexcept that, if any, operated by such Underwriter for fourth fiscal quarter is the purpose last quarter of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.the
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such the Prospectus pursuant to Rule 424(b) under the Securities Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430B under the Securities Act; to make no amendment or supplement to the Registration Statement Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus prior to any Time of Delivery that which shall be disapproved reasonably objected to by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending amendment or supplementing supplement of the Registration Statement Statement, any Preliminary Prospectus or the 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such order;.
(b) To furnish to the Underwriters a copy of each proposed Free Writing Prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Free Writing Prospectus to which the Underwriters reasonably object.
(c) Unless otherwise consented to by the Underwriters in writing, not to take any action that would result in the Underwriters or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared by or on behalf of the Underwriters that the Underwriters otherwise would not have been required to file thereunder.
(d) If the Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request (whose name and address is supplied to the Company), either amendments or supplements to the Disclosure Package so that the statements in the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Disclosure Package, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the first date of the public offering of the Shares as, in the reasonable opinion of counsel for the Underwriters, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriters or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable 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 (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 (whose names and addresses are supplied to the Company), either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(f) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request have requested and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a take any action that would subject it to general consent to service of process or general taxation in any jurisdiction;.
(cg) Prior to 10:00 a.m.As soon as practicable, Richmond, Virginia time, on but not later than the business day next succeeding the date of this Agreement and from time to timeAvailability Date (as defined below), to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 twelve months beginning after the effective date of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by Statement which will satisfy the provisions of this Section 5(e11(a) of the Securities Act (it being agreed that for the remainder purpose of this subsection 5(g) only, “Availability Date” means the 45th day after the end of the Lock-Up Period as if such recipients were fourth fiscal quarter following the Company), without the prior written consent of BBTCM; provided, however, fiscal quarter that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from includes the effective date of the Registration Statement, to 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) To either make available on EXXXX or furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you (i) as soon as they are availablefor a period of five years from the effective date of the Registration Statement, 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 are listed; , as soon as they are available, and (ii) for a period of one year from the effective date of the Registration Statement, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;
(g) To apply , except to the net proceeds from extent such information is publicly available through the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;Commission’s website or disseminated through a national news service.
(i) If the Company elects to rely upon on Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, Eastern time on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act; and.
(j) Upon During the reasonable request of period beginning from the date hereof and continuing to and including the date ninety (90) days after the date hereof, the Company will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version Series A Preferred Shares of the Company’s trademarks, servicemarks and corporate logo for use on Company without the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering prior written consent of the SharesUnderwriters; provided, however, that the foregoing license shall be used solely for Company may issue and sell the purpose described Series A Preferred Shares pursuant to this Agreement. Notwithstanding anything contained in this Section 5(j) to the contrary, if (i) during the last seventeen (17) days of the ninety-day period referenced above, the Company releases earnings results or material news or material event relating to the Company occurs; or (ii) prior to the expiration of the ninety-day period referenced above, the Company announces that it will release earnings results during the sixteen-day period beginning on the last day of such ninety-day period, and, in either the case of clause (i) or (ii) immediately above, the safe harbor pursuant to Rule 139 under the Securities Act is granted without any fee and may not be assigned available to the Underwriters, the restrictions imposed by this Section 5(j) shall continue to apply until the expiration of the eighteen-day period beginning on the issuance of the earnings release or transferredthe occurrence of the materials news or material event, as applicable, unless the Underwriters waive in writing such continuance.
(k) To apply the net proceeds from the sale of the Shares in the manner set forth in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (International Shipholding Corp)
Agreements of the Company. The Company covenants and agrees with each ------------------------- of the UnderwritersInitial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Series A Preferred Stock for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; andevent that, in the event reasonable opinion 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, promptly either counsel to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required or counsel to qualify as a foreign corporation or to file a general consent to service of process in the Initial Purchasers, makes any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Series A Preferred Stock under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any of the Series A Preferred Stock under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. 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 Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to the Initial Purchasers' request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Preliminary Offering Memorandum or omission the Offering Memorandum that may be necessary or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resale, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of either counsel to the Company or counsel to the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements therein, in the light of the Act circumstances when such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchasers and Rule 158 under (ii) forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the Act covering a period of at least 12 months beginning after statements therein as so amended or supplemented will not, in the effective date light of the Registration Statement;circumstances when it is so delivered, be misleading, or so that such Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Initial Purchasers and counsel to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchasers in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets Series A Preferred Stock under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchasers may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMExempt Resales; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results shall not be required in connection therewith to register or material news qualify as a foreign corporation where it is not now so qualified or a material event to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up PeriodPreliminary Offering Memorandum, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results Offering Memorandum or the occurrence of the material news or material event, as applicable, unless BBTCM waivesExempt Resales, in writing, such extension;any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated hereby are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company hereunder, including in connection with:
(i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all preliminary and final Blue Sky memoranda prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance, transfer and delivery by the Company of the Securities and, if issued, the Debentures to the Initial Purchasers, (iv) the qualification or registration of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of counsel to the Initial Purchasers relating thereto), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the Securities (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, (viii) all expenses and listing fees in connection with the application for quotation of the Series A Preferred Stock in the National Association of Securities Dealers, Inc. ("NASD") Automated ---- Quotation System - PORTAL ("PORTAL"), (ix) all fees and expenses (including ------ fees and expenses of counsel to the Company) of the Company in connection with the approval of the Securities by DTC for "book-entry" transfer, (x) rating the Securities by rating agencies, (xi) the reasonable fees and expenses of the Transfer Agent and its counsel in connection with the Certificate of Designation, (xii) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (xiii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Securities (other than out-of-pocket expenses incurred by the Initial Purchasers for travel, meals and lodgings).
(g) To use the proceeds from the sale of the Series A Preferred Stock in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) If the Debentures are issued, not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of the Debentures.
(i) 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 on its part to the delivery of the Series A Preferred Stock.
(j) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Series A Preferred Stock in a manner that would require the registration under the Act of the sale to the Initial Purchasers or Eligible Purchasers of the Series A Preferred Stock or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(k) For so long as any of the Securities remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Securities Act of 1934, as amended (the "Exchange Act"), to ------------ make available to any holder of the Series A Preferred Stock in connection with any sale thereof and any prospective purchaser of such Series A Preferred Stock from such holder, the information required by Rule 144A(d)(4) under the Act.
(l) To cause the Exchange Offer to be made in the appropriate form to permit registered New Preferred Stock or New Exchange Debentures to be offered in exchange for the Series A Preferred Stock or Exchange Debentures, as the case may be, and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(m) To comply with all of its agreements set forth in the Registration Rights Agreement and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Securities by DTC for "book-entry" transfer.
(n) To use its best efforts to effect the inclusion of the Series A Preferred Stock in PORTAL and to obtain approval of the Securities by DTC for "book-entry" transfer.
(o) During a period of three five years from following the effective date Closing Date, to deliver without charge to each of the Registration StatementInitial Purchasers, to furnish to you as they may reasonably request, promptly upon their becoming available, copies of (i) all reports or other communications publicly available information that the Company shall mail or otherwise make available to its stockholders and (financial or otherii) furnished to stockholdersall reports, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to and proxy or information statements filed by the Company with the Commission or any national securities exchange on which and such other publicly available information concerning the Company or its subsidiaries, including without limitation, press releases.
(p) Prior to the Closing Date, to furnish to each of the Initial Purchasers, as soon as they have been publicly disclosed by the Company, a copy of any class of securities consolidated financial statements of the Company is listed; and for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum.
(iiq) such additional information concerning Neither the business and financial condition Company nor any of its subsidiaries will take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Series A Preferred Stock. Except as you may from time to time reasonably request;
(g) To apply permitted by the net proceeds from Act, the Company will not distribute any preliminary offering memorandum, offering memorandum or other offering material in connection with the offering and sale of the Shares for Series A Preferred Stock.
(r) To comply with the purposes set forth agreements in the Prospectus;
(h) To use its best efforts to list, subject to notice Certificate of issuanceDesignation, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b)Indenture, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, Rights Agreement and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredother Operative Document.
Appears in 1 contract
Samples: Purchase Agreement (Intermedia Communications of Florida Inc)
Agreements of the Company. The Company agrees with each of the UnderwritersInitial Purchasers:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company Initial Purchasers, to confirm such advice in writing, (i) of receipt of any notification with the Commission subsequent respect to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Senior Notes for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 5(f), of or the initiation or threatening of any proceeding for such purpose by any such purposestate securities commission or other regulatory authority, or and (ii) of the happening of any request by event that makes any statement of a material fact made in the Commission for Offering Documents (or any amendment or supplement thereto) untrue or that requires the amending making of any additions to or supplementing of changes in the Registration Statement Offering Documents (or Prospectus any amendment or for additional information; andsupplement thereto) in order to make the statements therein, in the event light of the circumstances in 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 from qualification of the Senior Notes under any state securities or Blue Sky laws, and, if at any time any state securities commission or other regulatory authority shall issue any stop order or order suspending the qualification or exemption from qualification of any order preventing of the Senior Notes under any state securities or suspending Blue Sky laws, the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from time Subject to time paragraph (e) below, to take such action furnish to the Initial Purchasers, without charge, as you many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request request. The Company consents to qualify the Shares 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 use of the SharesPreliminary Offering Memorandum and the Offering Memorandum, providedand any amendments or supplements thereto, that by the Initial Purchasers 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;with Exempt Resales.
(c) Prior Not to 10:00 a.m.amend or supplement the Offering Memorandum, Richmondwhether before or after the Closing Date, Virginia timeunless (i) the Initial Purchasers have been previously advised thereof, on and (ii) the business day next succeeding Initial Purchasers have not reasonably objected thereto; and to prepare, promptly upon the date of this Agreement and from time Initial Purchasers' request, any amendment or supplement to timethe Offering Memorandum that the Initial Purchasers deem necessary or advisable in connection with Exempt Resales.
(d) Subject to paragraph (e) below, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following if, after the date hereof that a prospectus is required and prior to be delivered in connection with offers or sales the completion of SharesExempt Resales of the Senior Notes by the Initial Purchasers, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occur as a result of which it becomes necessary to amend or supplement the Prospectus Offering Memorandum to comply with any law or to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, to promptly (i) prepare an appropriate amendment or supplement to the Offering Memorandum so that the statements in the Offering Memorandum, as then so amended or supplemented would include supplemented, will comply with all applicable laws and will not, in the light of the circumstances at the time it is so delivered, be misleading, and (ii) furnish each Initial Purchaser with such number of copies of the Offering Memorandum, as amended or supplemented, as such Initial Purchaser may reasonably request.
(e) Prior to the consummation of the Exchange Offer or the effectiveness of an applicable shelf registration statement if, in the reasonable judgment of the Initial Purchasers, the Initial Purchasers or any of their affiliates (as such term is defined in the rules and regulations under the Act) are required to deliver an Offering Memorandum in connection with sales of, or market-making activities with respect to, the Senior Notes, (A) to periodically amend or supplement the Offering Memorandum so that the information contained in the Offering Memorandum complies with the requirements of Rule 144A of the Act, (B) to amend or supplement the Offering Memorandum when necessary to reflect any material changes in the information provided therein so that the Offering Memorandum will not contain 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 when such Prospectus existing as of the date the Offering Memorandum is so delivered, not misleadingmisleading and (C) to provide the Initial Purchasers with copies of each such amended or supplemented Offering Memorandum, oras the Initial Purchasers may reasonably request. Following the consummation of the Exchange Offer or the effectiveness of an applicable shelf registration statement and for so long as the Notes are outstanding if, if for in the reasonable judgment of the Initial Purchasers, the Initial Purchasers or any other reason it shall be necessary during of their affiliates (as such period term is defined in the rules and regulations under the Act) are required to deliver a prospectus in connection with sales of, or market-making activities with respect to, such securities, (A) to periodically amend the applicable registration statement so that the information contained therein complies with the requirements of Section 10(a) of the Act, (B) to amend the applicable registration statement or supplement the Prospectus related prospectus or the documents incorporated therein when necessary to reflect any material changes in the information provided therein so that the registration statement and the prospectus will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to comply make the statements therein, in the light of the circumstances existing as of the date the prospectus is so delivered, not misleading and (C) to provide the Initial Purchasers with copies of each amendment or supplement filed and such other documents as the Initial Purchasers may reasonably request. The Company hereby expressly acknowledges that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 5(e).
(f) To (i) cooperate with the Initial Purchasers and counsel for the Initial Purchasers in connection with the qualification of the Senior Notes for offer and sale by the Initial Purchasers under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request, (ii) continue such qualification in effect so long as required for Exempt Resales of the Senior Notes and (iii) file such consents to service of process or other documents as may be necessary 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 take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) So long as any of the Notes are outstanding and the Company is subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to file reports pursuant to Section 13 or 15(d) of the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to and, during the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, two years following the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior deliver to the consummation of any such transactionInitial Purchasers, pursuant to an instrument in form and substance reasonably satisfactory to BBTCMpromptly upon their becoming available, to be bound by the provisions of this Section 5(e(i) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date of the Registration Statement, to furnish to you copies of all current, regular and periodic reports filed by the Company with any securities exchange or other communications (financial or other) furnished to stockholders, and to 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 governmental authority succeeding to any class of securities of the Company is listed; Commission's functions, and (ii) copies of each report or other publicly available information of the Company mailed to the holders of Notes and such additional other publicly available information concerning the business Company and financial condition of its subsidiaries as the Company as you Initial Purchasers may from time to time reasonably request;.
(gh) To apply use the net proceeds from the sale of the Shares Senior Notes in the manner specified in the Offering Memorandum (and any amendments or supplements thereto) under the caption "Use of Proceeds."
(i) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of the Notes.
(j) Except as otherwise agreed to by the parties hereto, to pay all costs, expenses, fees and taxes incident to,
(1) the preparation, printing, filing and distribution under the Act of the Offering Documents (including financial statements and exhibits) and all amendments and supplements to any of them,
(2) the printing and delivery of the Operative Documents, the Senior Notes, the preliminary and supplemental Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection herewith and with the Exempt Resales (including in each case any disbursements of counsel to the Initial Purchasers relating to such printing and delivery),
(3) the issuance and delivery by the Company of the Senior Notes,
(4) the registration or qualification of the Senior Notes for offer and sale under the securities or Blue Sky laws of the several states (including in each case the reasonable fees and disbursements of counsel to the Initial Purchasers relating to such registration or qualification and memoranda relating thereto),
(5) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements thereto as may be requested for use in connection with the Exempt Resales,
(6) the rating of the Senior Notes by rating agencies, if any,
(7) the reasonable fees, disbursements and expenses of the Company's and Guarantors' counsel and accountants,
(8) all expenses and listing fees in connection with the application for quotation of the Senior Notes in the National Association of Securities Dealers, Inc. Automated Quotation System - PORTAL ("Portal"),
(9) all fees and expenses (including reasonable fees and expenses of counsel) of the Company and the Guarantors in connection with approval of the Securities by DTC for "book-entry" transfer, and
(10) the performance by the Company of its other obligations under this Agreement.
(k) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than a default by the Initial Purchasers) or if for any reason the Company shall be unable or unwilling to perform their obligations hereunder, the Company shall, except as otherwise agreed by the parties hereto, reimburse the Initial Purchasers for the purposes fees and expenses to be paid or reimbursed pursuant to Section 5(j) above, and reimburse the Initial Purchasers for all out-of-pocket expenses (including the reasonable fees and expenses of counsel to the Initial Purchasers) reasonably incurred by the Initial Purchasers in connection with the transactions contemplated by this Agreement.
(l) Prior to the Closing Date, to furnish to the Initial Purchasers, as soon as they have been prepared by the Company, a copy of any consolidated financial statements of the Company or Holdings for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum.
(m) Not to distribute prior to the Closing Date any offering material in connection with the offering and sale of the Senior Notes other than the Offering Memorandum.
(n) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Senior Notes in a manner that would require the registration under the Act of the sale to the Initial Purchasers or the Eligible Purchasers of Senior Notes.
(o) For so long as any of the Notes remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make available to any Eligible Purchaser or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of such Notes from such Eligible Purchaser or beneficial owner, the information required by Rule 144A(d)(4) under the Act.
(p) To comply with their agreements in the Registration Rights Agreement, and all agreements set forth in the Prospectus;representation letters of the Company to DTC relating to the approval of the Senior Notes by DTC for "book-entry" transfer.
(hq) To cause the Exchange Offer, if available, to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the New Senior 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.
(r) To use its best efforts to list, subject to notice effect the inclusion of issuance, the Shares on the Nasdaq National Market;Senior Notes in PORTAL.
(is) If 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 elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay prior to the Commission Closing Date and to satisfy all conditions precedent to the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version delivery of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredSenior Notes.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare The Company will file the Prospectus in a form reasonably approved by you and Final Offering Circular, subject to file such Prospectus the prior approval of StartEngine, pursuant to Rule 424(b253 and Regulation A, within the prescribed time period.
(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery Upon effectiveness of this Agreement, orthe Company will not, if applicable, during such earlier time period as may the Final Offering Circular would be required by Rule 430A(a)(3) law to be delivered in connection with sales of the Shares in connection with the offering contemplated by this Agreement (whether physically or through compliance with Rules 251 and 254 under the Act; to make no Act or any similar rule(s)), file any amendment or supplement to the Registration Offering Statement or Prospectus the Final Offering Circular unless a copy thereof shall first have been submitted to StartEngine within a reasonable period of time prior to any Time of Delivery that the filing thereof and StartEngine shall be disapproved by you promptly after reasonable notice thereof; to advise younot have reasonably objected thereto in good faith.
(c) The Company will notify StartEngine promptly, promptly after it receives notice thereofand will, of the time if requested, confirm such notification in writing: (1) when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus Offering Statement is filed; (2) of any request by the Commission for any amendments to the Offering Statement or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy amendment or information statements required to be filed by the Company with the Commission subsequent supplements to the date of the Prospectus and Final Offering Circular or for so long as the delivery of a prospectus is required in connection with the offering or sale of the Sharesadditional information; to advise you, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Offering Statement or the Final Offering Circular, or the initiation of any proceedings for offering that purpose or sale the threat thereof; and (4) of becoming aware of the occurrence of any event that in the judgment of the Company makes any statement made in the Offering Statement, the Preliminary Offering Circular or the Final Offering Circular untrue in any jurisdictionmaterial respect or that requires the making of any changes in the Offering Statement, the Preliminary Offering Circular or the Final Offering Circular in order to make the statements therein, in light of the initiation or threatening of circumstances in which they are made, not misleading. If the Company has omitted any proceeding for any such purposeinformation from the Offering Statement, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to it will use its best efforts to obtain comply with the withdrawal provisions of and make all requisite filings with the Commission pursuant to Regulation A, the Act and the Rules and Regulations and to notify StartEngine promptly of all such order;filings.
(bd) Promptly from If, at any time when the Final Offering Circular relating to time to take such action as you may reasonably request to qualify the Shares 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 Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales under the Act, the Company becomes aware of Shares, and, if the delivery occurrence 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 Final Offering Circular, as then amended or supplemented would supplemented, would, in the reasonable judgment of counsel to the Company or counsel to StartEngine, include an any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, oror the Offering Statement, as then amended or supplemented, would, in the reasonable judgment of counsel to the Company or counsel to StartEngine, 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 shall be necessary during such period is necessary, in the reasonable judgment of counsel to the Company or counsel to StartEngine, at any time to amend or supplement the Prospectus in order Final Offering Circular or the Offering Statement to comply with the Act or the Exchange ActRules and Regulations, to the Company will promptly notify you StartEngine and upon your request to file such document and to will promptly prepare and furnish without charge file with the Commission, at the Company’s expense, an amendment to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of the Offering Statement and/or an amended Prospectus amendment or a supplement to the Prospectus which will correct Final Offering Circular that corrects such statement or and/or omission or effect effects such compliance;
(d) To make generally available . The Company consents to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date use of the Registration StatementFinal Offering Circular or any amendment or supplement thereto by StartEngine, an earnings statement and StartEngine agrees to provide to each Investor, prior to the Closing and, as applicable, any Subsequent Closing, a copy of the Company Final Offering Circular and the Subsidiaries (which need not be audited) complying with 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;any amendments or supplements thereto.
(e) During If at any time following the Lockdistribution of any Testing-Up Periodthe-Waters Communication there occurred or occurs an event or development as a result of which such Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company shall not, directly has or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree will promptly notify StartEngine in writing prior to the consummation of any such transactionand has or will promptly amend or supplement and recirculate, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writingat its own expense, such extension;
(f) During a period of three years from the effective date of the Registration Statement, Testing-the-Waters Communication to furnish to you copies of all reports eliminate or other communications (financial correct such untrue statement or other) furnished to stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredomission.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters that:
(a) To prepare During any period that a prospectus relating to the Prospectus Securities is required to be delivered under the 1933 Act (but in a form reasonably approved by you any event through the Closing Time), the Company, subject to Section 5(b) of this Agreement, will comply with the requirements of Rule 415, Rule 430B and to file such Prospectus pursuant to Rule 424(b) under the 1933 Act not later than and will notify the Commission’s close of business on Representative immediately, and confirm the second business day following the execution and delivery of this Agreementnotice in writing, or, if applicable, such earlier time as may be required by Rule 430A(a)(3(i) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any post-effective amendment to the Registration Statement has been filed or becomes effective shall become effective, or any supplement to the Prospectus or any amended Prospectus has shall have been filed and filed, (ii) of the receipt of any comments from the Commission relating to furnish you with copies thereof; to file promptly all reports and the Registration Statement, (iii) of any definitive proxy or information statements required to be filed request by the Company with the Commission subsequent for any amendment to the date of Registration Statement or any amendment or supplement to the Prospectus or for additional information, and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or preliminary prospectus, or of any proceeding under Section 8A of the 1933 Act, or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purpose, or purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) within the time period required by Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of any request prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of that it was not, it will promptly file such prospectus. During any period that a prospectus relating to the Securities is required to be delivered under the 1933 Act (but in any event through the Closing Time), the Company will use its reasonable efforts to prevent the issuance of any stop order or of and, if any stop order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualificationis issued, promptly to use its best efforts to obtain the withdrawal of such order;lifting thereof at the earliest possible moment.
(b) Promptly from time During any period that a prospectus relating to time the Securities is required to take such action as you may reasonably request to qualify the Shares for offering and sale be delivered under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit 1933 Act (but in any event through the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the SharesClosing Time), provided, that in connection therewith the Company shall not be required will give the Representative notice of its intention to qualify as a foreign corporation file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to any preliminary prospectus (including any prospectus included in the Registration Statement at the time it became effective) or to the Prospectus, will furnish the Representative with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object. The Company has given the Underwriters notice of any filings made pursuant to the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Underwriters notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Underwriters with copies of any such documents a general consent reasonable amount of time prior to service of process in any jurisdiction;such proposed filing.
(c) Prior Upon the Representative’s written request, the Company will deliver to 10:00 a.m.the Representative, Richmondwithout charge, Virginia timeconformed copies of the Registration Statement as originally filed, on and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and, upon the business day next succeeding Representative’s request, will also deliver to the date Representative, without charge, a conformed copy of this Agreement the Registration Statement as originally filed and from time to time, to furnish of each amendment thereto (without exhibits) for each of the Underwriters with written and electronic Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T, or as filed with the Commission in paper form as permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus at is required to be delivered under the 1933 Act, such locations number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will use its commercially reasonable efforts to comply with the 1933 Act so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in such quantities as you may from the Prospectus. If at any time to time reasonably request during such period following the date hereof that when a prospectus is required by the 1933 Act to be delivered in connection with offers or sales of Sharesthe Securities, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will promptly prepare and file with the Commission, subject to Section 5(b) of this Agreement, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(f) If there occurs an event or development as a result of which the Prospectus as then amended or supplemented General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will promptly notify the Representative so that any use of the General Disclosure Package may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or omission.
(g) If at any time following the distribution of any Written Testing-the-Waters Communication there has occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, orthe Company will promptly notify the Representative so that any use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented (at the sole cost and expense of the Company) to eliminate or correct such untrue statement or omission.
(h) The Company will use its commercially reasonable efforts, if in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Underwriters may designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided, however, that the foregoing shall not apply to the extent that the Securities are “covered securities” that are exempt from state regulation of securities offerings pursuant to Section 18 of the 1933 Act; and provided, further, that the Company shall not be obligated to file any other reason 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 shall be 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.
(i) The Company will timely file such reports pursuant to the Exchange Act as are necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you security holders as soon as practicable, but in any event not later than eighteen 16 months after the effective date of the Registration Statementhereof, an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act 1933 Act.
(j) During the period beginning from the date hereof and Rule 158 under continuing to and including the Act covering a period of at least 12 months beginning date that is 90 days after the effective date of the Registration Statement;
(e) During the Lock-Up PeriodProspectus, the Company shall not, directly or indirectly, offer, will not sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise sell dispose of or agree to dispose of, except as provided hereunderdirectly or indirectly, any debt securities of issued or guaranteed by the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company Securities or any securities that are convertible into or exchangeable foror exercisable for debt securities issued or guaranteed by the Company that are substantially similar to the Securities, or that represent file or cause to be declared effective a registration statement under the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement 1933 Act with respect to such merger or acquisition, so long as the recipients any of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company)foregoing, without the prior written consent of BBTCM; providedthe Representative, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating which may not be unreasonably withheld. The foregoing sentence shall not apply to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 registration of the Company is listed; Securities and the sales to the Underwriters pursuant to this Agreement, (ii) such additional information concerning borrowings under the business and financial condition Credit Facility, (iii) the issuance of SBA-guaranteed debentures by the SBIC Funds or (iv) the filing by the Company as you may from time to time reasonably request;of a universal shelf registration statement covering various securities, including debt and equity securities and certain purchase rights relating thereto.
(gk) To apply The Company will use the net proceeds received by it from the sale of the Shares Securities in the manner specified in the General Disclosure Package and in the Prospectus under “Use of Proceeds.”
(l) The Company will cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) The Company will maintain a trustee, paying agent and registrar for the purposes set forth in the Prospectus;Securities.
(hn) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Securities, except as may be allowed by law.
(o) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1933 Act, the Exchange Act and the 1940 Act within the time periods required by such act, rule or regulation. To the extent the distribution of Securities has been completed, the Company will not be required to provide the Underwriters with reports it is required to file with the Commission under the Exchange Act.
(p) The Company, during a period of at least 12 months from the Closing Time, will use its commercially reasonable efforts to maintain its status as a business development company.
(q) The Company will use its commercially reasonable efforts to maintain its qualification as a RIC under Subchapter M of the Code for each full fiscal year during which it is a business development company under the 1940 Act.
(r) The Company shall use its best efforts to list, subject cause each of the SBIC Funds to notice of issuance, continue to comply with the Shares on requirements for qualification as an SBIC and to meet its obligations as an SBIC licensed by the Nasdaq National Market;SBA.
(is) If The Company will use its commercially reasonable efforts to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (A) material information relating to the Company elects to rely upon Rule 462(b), and the assets of the Company shall file a Rule 462(bmanaged by the Adviser is promptly made known to the officers responsible for establishing and maintaining the system of internal accounting controls; and (B) Registration Statement with any significant deficiencies or weaknesses in the Commission in compliance with Rule 462(b) by 10:00 p.m.design or operation of internal accounting controls which could adversely affect the Company’s ability to record, Washingtonprocess, D.C. time, on the date of this Agreementsummarize and report financial data, and the Company shall at the time of filing either pay any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the Commission Company’s independent auditors and the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version audit committee of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose board of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferreddirectors.
Appears in 1 contract
Samples: Underwriting Agreement (Stellus Capital Investment Corp)
Agreements of the Company. The Company agrees with each of the Underwritersseveral Underwriters as follows:
(a) To prepare the Prospectus in relation to the Securities in a form reasonably approved by you the Representatives and to file such the Prospectus Supplement as required pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, the Prospectus relating to the applicable Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus after the date of this Agreement and prior to any Time of Delivery that the Closing Date for such Securities which shall be disapproved by you the Representatives for such Securities promptly after reasonable notice thereof; to advise youthe Representatives promptly of any such amendment or supplement after such Closing Date and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission 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 such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereofCommission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus prospectus or prospectusregistration statement relating to the Securities, of the suspension of the qualification of the Shares such Securities for offering or sale in any jurisdiction, of the initiation or threatening by the Commission of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or prospectus relating to the Securities or suspending any such qualification, promptly to use promptly its best reasonable efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time The Company will furnish to time each of you, and to take counsel to the Underwriters such action number of copies as you may reasonably request to qualify the Shares 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 SharesRegistration Statement as originally filed with the Commission and of each amendment and supplement thereto, providedincluding consents, 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 jurisdictionfinancial statements and all exhibits thereto;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date execution and delivery of this Agreement and from time Agreement, the Company has delivered to timeyou, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and without charge, in such quantities as you may have requested, copies of each Preliminary Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(d) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time reasonably request during for such period following as in the date hereof that opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with offers sales by any Underwriter or sales dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of Sharesthe Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the use of the Prospectus and of any amendment or supplement thereto in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, and, if both in connection with the delivery offering and sale of a prospectus the Securities 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 this such period and if at such of time any event shall have occurred as a result occur that in the judgment of which the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented would include an untrue statement of a material fact supplemented) or omit to state any material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for any other reason it shall be is necessary during such period to supplement or amend or supplement 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 Exchange ActCompany will forthwith prepare and file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to notify the Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you, as Representatives of the 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.
(e) The Company will cooperate with you and upon your request to file with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies jurisdictions as you may from time designate and will file such consents to time reasonably request service of an amended Prospectus process or a supplement other documents necessary or appropriate in order to the Prospectus which will correct such statement or omission or effect such compliance;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.
(df) To The Company will make generally available to its stockholders and to deliver to you as soon as practicablesecurity holders a consolidated earnings statement, but in any event which need not later than eighteen months be audited, covering a twelve-month period commencing after the effective date of the Registration StatementStatement and ending not later than 15 months thereafter, an as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of the Company and the Subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration Statement;Commission thereunder (including, at the option of the Company, Rule 158).
(eg) During the Lock-Up Periodperiod of five years hereafter, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to deliver to you (i) as soon as they are available, copies a copy of any reports and financial statements furnished each report of the Company mailed to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; Commission, and (ii) from time to time such additional other information concerning the business and financial condition of the Company as you may from time to time reasonably request;.
(gh) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to paragraph (c) of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(i) The Company will apply the net proceeds from the sale of the Shares for Securities substantially in accordance with the purposes description set forth in the Prospectus;.
(hj) To Except as provided in this Agreement, the Company will not, directly or indirectly, (1) offer, pledge, sell, contract to sell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, (2) sell or grant any option or contract to purchase, or purchase any option or contract to sell, Common Stock or any securities convertible into or exchangeable or exercisable for or repayable with Common Stock, (3) grant any option, right or warrant for the sale of Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, (4) lend or otherwise dispose of or transfer Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, (5) request or demand that the Company file any registration statement related to the Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, or (6) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock (whether such swap, agreement or transaction is to be settled by delivery of shares or other securities, in cash or otherwise), for a period of 90 days after the date of the Prospectus Supplement, without first obtaining written consent of the Representatives, other than any shares or options issued pursuant to Company employee and director plans and any Company dividend, and interest reinvestment and stock purchase plans.
(k) Except as stated in this Agreement and in the Preliminary Prospectus and Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Securities.
(l) The Company will cause the shares of Common Stock which it agrees to sell under this Agreement to be listed on the New York Stock Exchange on or before the Closing Date and will use its best efforts to list, subject to notice of issuance, the Shares maintain such listings on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredexchange.
Appears in 1 contract
Samples: Purchase Agreement (Aquila Inc)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter as follows:
(a) To prepare Compliance with Securities Regulations and Commission Requests . The Company, subject to Section 3(b), will comply with the Prospectus requirements of Rule 430A and will notify the Representatives immediately, and confirm the notice in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(bwriting, (i) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any post-effective amendment to the Registration Statement has been filed or becomes effective shall become effective, or any supplement to the Prospectus or any amended Prospectus has shall have been filed and to furnish you with copies thereof; to file promptly all reports and filed, (ii) of the receipt of any definitive proxy or information statements required to be filed comments from the Commission, (iii) of any request by the Company with the Commission subsequent for any amendment to the date of Registration Statement or any amendment or supplement to the Prospectus or for additional information, and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or preliminary prospectus, or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding proceedings for any of such purpose, or purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of any request prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of that it was not, it will promptly file such prospectus. The Company will use reasonable efforts to prevent the issuance of any stop order or of and, if any stop order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualificationis issued, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall lifting thereof at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredearliest possible moment.
Appears in 1 contract
Agreements of the Company. The Company hereby agrees with each of the Underwriters------------------------- Initial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 5(d) hereof, of or the initiation or threatening of any proceeding by any state securities commission or any other federal or state regulatory authority for any such purpose, or and (ii) of the happening of any request by event during the Commission for the amending or supplementing period referred to in Section 5(c) hereof that makes any statement of the Registration Statement or Prospectus or for additional information; and, a material fact made in the event of 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 leading in any material respect. The Company shall use commercially reasonable efforts to prevent the issuance of any stop order suspending the qualification or exemption from qualification of any Securities 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 preventing or suspending the use qualification or exemption from qualification of any Preliminary Prospectus Securities under any state securities or prospectus or suspending any such qualificationBlue Sky laws, promptly to the Company shall use its best commercially reasonable efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from time to time to take such action To furnish the Initial Purchasers and counsel for the Initial Purchasers as you many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request request. Subject to qualify the Shares for offering Initial Purchasers' compliance with their representations, warranties and sale under agreements set forth in Section 7 hereof, the securities laws of such jurisdictions as you may request and Company consents 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 use of the SharesOffering Memorandum, providedand any amendments and supplements thereto required pursuant hereto, that by the Initial Purchasers 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;with Exempt Resales.
(c) Prior During the period prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding earlier of the expiration of nine months after the date of this Agreement the Offering Memorandum and from time to time, to furnish the Underwriters with written and electronic copies date of completion of the Registration Statement sale of the Notes by the Initial Purchasers, (i) not to make any amendment or supplement to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised or to which the Initial Purchasers shall reasonably object within two business days after being so advised and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, and, (ii) if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occur or condition shall exist as a result of which which, in the Prospectus as then amended opinion of counsel to the Initial Purchasers, it becomes necessary to amend or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus the Offering Memorandum is delivereddelivered to a purchaser, not misleadingmisleading in any material respect, or, or if for any other reason it shall be is necessary during such period to amend or supplement the Prospectus in order Offering Memorandum to comply with the Act or the Exchange Actany applicable law, to notify you and upon your request to file such document and forthwith to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus appropriate amendment or a supplement to the Prospectus which Offering Memorandum so that the statements therein, as so amended or supplemented, will correct not, in the light of the circumstances when it is so delivered, be misleading in any material respect, or so that the Offering Memorandum will comply with applicable law, and to furnish to the Initial Purchasers and such statement or omission or effect other persons as the Initial Purchasers may designate such compliance;number of copies thereof as the Initial Purchasers may reasonably request.
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Prior to the Shares, including but not limited to any shares sale of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) all Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Company’s benefit plans existing on, or upon Initial Purchasers and counsel to the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchasers in connection with the merger with registration or acquisition of another corporation or entity or the acquisition qualification of the assets Securities for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or properties Blue Sky laws of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long jurisdictions as the recipients of the Company’s securities agree Initial Purchasers may reasonably designate in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee continue such qualification in effect so long as reasonably required for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version distribution of the Company’s trademarks, servicemarks Securities and corporate logo for use on the website, if any, operated by to file such Underwriter for the purpose consents to service of facilitating the on-line offering of the Sharesprocess or other documents as may be reasonably necessary in order to effect such registration or qualification; provided, however, that the Company shall not be required in connection therewith to register or 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.
(e) So long as any of the Securities are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act 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 Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder, the information ("Rule 144A Information") required by Rule 144A(d)(4) under the Act. ---------------------
(f) 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 Notes to the Initial Purchasers and pursuant to Exempt Resales and the issuance and delivery of Common Stock upon conversion of the Notes, and all other fees or expenses of the Company 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 license shall be used solely (including financial statements) specified in Sections 5(b) and 5(c) hereof prior to or during the period specified in Section 5(c) hereof, 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 of the Company related to the transfer and delivery of the Notes to the Initial Purchasers and pursuant to Exempt Resales and the issuance and delivery of the Common Stock issuable upon conversion of the Notes, and 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 Securities, (iv) 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 printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the purpose described aboveInitial Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Securities, (vi) all expenses and listing fees in connection with the application for quotation of the Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL market ("PORTAL") and ---- ------ the application for listing of the underlying Common Stock on the American Stock Exchange, (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 Registration Statement, as set forth in the Registration Rights Agreement, and (xi) all other costs and expenses of the Company incident to the performance of the obligations of the Company hereunder for which provision is granted without not otherwise made in this Section.
(g) To use commercially reasonable efforts to effect the inclusion of the Notes on PORTAL.
(h) To use commercially reasonable efforts to obtain the approval of DTC for "book-entry" transfer of the Securities, and to comply with all of its agreements set forth in the representation letter of the Company to DTC relating to the approval of the Securities by DTC for "book-entry" transfer.
(i) To use commercially reasonable efforts to cause the Common Stock issuable upon conversion of the Notes to be listed on the American Stock Exchange prior to the Closing Date.
(j) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any fee security (as defined in the Act) the offering or sale of which would be integrated with the sale of the Notes to the Initial Purchasers or pursuant to Exempt Resales or the issuance of the Common Stock upon conversion of the Notes, in a manner that would require the registration of any such sale or issuance of the Securities under the Act.
(k) To the extent lawful, not to voluntarily claim, and may not to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes.
(l) To comply with all of its agreements set forth in the Registration Rights Agreement.
(m) To use commercially reasonable efforts to do and perform all things required or necessary to be assigned or transferreddone and performed under this Agreement by it prior to the Closing Date and any Option Closing Date and to satisfy all conditions precedent to the delivery of the Securities.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the UnderwritersInitial Purchaser as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchaser promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchaser, confirm such advice in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, writing (i) of the issuance by the Commission any state securities commission or other regulatory authority of any stop order or order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of that makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any Notes under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption from qualification of any Notes under any state securities or Blue Sky laws, the Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. 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) Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum during such period as in the reasonable opinion of counsel for the Initial Purchaser the Preliminary Offering Memorandum or the Offering Memorandum is required by law to be delivered in connection with Exempt Resales and in connection with market-making activities of the Initial Purchaser for so long as any Initial Notes are outstanding unless the Initial Purchaser previously has been advised thereof and has not objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to the Initial Purchaser’s request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct Preliminary Offering Memorandum or the Offering Memorandum that in the reasonable opinion of the Initial Purchaser or counsel for the Initial Purchaser may be necessary or advisable in connection with such statement Exempt Resales or omission or effect such compliance;market-making activities.
(d) To make generally available If, during the period referred to its stockholders and to deliver to you as soon as practicablein 4(c) above, but in any event not later than eighteen months after occurs as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of counsel for the Company or counsel for the Initial Purchaser, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the Act and Rule 158 under circumstances when such Preliminary Offering Memorandum or Offering Memorandum is delivered to an Eligible Purchaser, not misleading, or if in the Act covering a period of at least 12 months beginning after the effective date reasonable opinion of the Registration Statement;Initial Purchaser or counsel for the Initial Purchaser it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or the Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchaser and (ii) forthwith to prepare an appropriate amendment or supplement to such Preliminary Offering Memorandum or the Offering Memorandum so that the statements therein as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that such Preliminary Offering Memorandum or the Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, Initial Purchaser and counsel for the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchaser in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets initial Notes under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchaser may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; Exempt Resales: provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results shall not be required in connection therewith to register or material news qualify as a foreign corporation where it is not now so qualified or a material event to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Company occurs Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction where it is not now so subject.
(2f) prior Whether or not the transaction contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the expiration performance of the initial Lock-Up Periodobligations of the Company hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all agreements, correspondence and all other documents prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance, transfer and delivery of the Initial Notes to the Initial Purchaser, (iv) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the Company announces that it will release earnings results during cost of printing and mailing a preliminary and final Blue Sky memorandum and the 16-day period beginning on reasonable fees and disbursements of counsel for the last day Initial Purchaser relating thereto in an amount not to exceed $7,000), (v) the furnishing of such copies of the initial Lock-Up PeriodPreliminary Offering Memorandum and the Offering Memorandum, then and all amendments and supplements thereto, as may be requested for use in each case connection with Exempt Resales, (vi) the Lock-Up Period will be extended until preparation of certificates for the expiration Notes (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the 18Company’s counsel and accountants, (viii) all fees and expenses (including fees and expenses of Counsel) of the Company in connection with the approval of the Notes by DTC for “book-day period beginning entry” transfer, (ix) the rating of the Notes by rating agencies, (x) the reasonable fees and expenses of the Trustee and its counsel, (xi) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (xii) 50% of the cost of aircraft charter relating to “roadshow” travel, and other “roadshow” travel and related expenses reasonably incurred in connection with the marketing and sale of the Notes. Except as provided in this Section 4(f), the Initial Purchaser shall pay its own expenses, including the fees and disbursements of its counsel and 50% of the cost of aircraft charter relating to “roadshow” travel.
(g) To use the proceeds from the sale of the Initial Notes in the manner described in the Offering Memorandum under the caption “Use of Proceeds” and to provide the Initial Purchaser with evidence of any application of such proceeds on the date of release each such application.
(h) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Notes.
(i) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the earnings results Initial Notes in a manner that would require the registration under the Act of the sale to the Initial Purchaser or the occurrence Eligible Purchasers of the material news Initial Notes or material eventto take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(j) For so long as any of the 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 applicableamended (the “Exchange Act”), unless BBTCM waivesto make available to any holder or beneficial owner of Initial Notes in connection with any sale thereof and any prospective purchaser of such Initial Notes from such holder or beneficial owner, in writing, such extension;the information required by Rule 144A(d)(4) under the Act.
(fk) To cause the Exchange Offer to be made in the appropriate form to permit registered Exchange Notes to be offered in exchange for the Initial Notes and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(l) To comply with all of its agreements set forth in the Registration Rights Agreement and all of its agreements set forth in the representation letters to DTC relating to the approval of the Notes by DTC for “book-entry” transfer.
(m) To effect the inclusion of the Notes in The PORTALSM Market (“PORTAL”) and to obtain approval of the Initial Notes by DTC for “book-entry” transfer.
(n) During a period of three five years from following the effective date of the Registration StatementClosing Date, to furnish deliver without charge to you the Initial Purchaser, as it may reasonably request, promptly upon their becoming available, copies of (i) all reports or other communications publicly available information that the Company mails or otherwise makes available to its securityholders and (financial or otherii) furnished to stockholdersall reports, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to and proxy or information statements filed by the Company with the Commission or any national securities exchange on which and such other publicly available information concerning the Company or any class of securities its subsidiaries, including without limitation, press releases.
(o) Prior to the Closing Date, to furnish to the Initial Purchaser, as soon as they have been prepared in the ordinary course by the Company, copies of any unaudited interim financial statements for any period subsequent to the periods covered by the financial statements in the Offering Memorandum.
(p) 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 price of any security of the Company is listed; and to facilitate the sale or resale of the Notes. Except as permitted by the Act, the Company will not distribute any (i) preliminary offering memorandum, including, without limitation, the Preliminary Offering Memorandum, (ii) such additional information concerning offering memorandum, including, without limitation, the business Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Notes.
(q) Prior to the Closing Date, not to issue any press release or other communications directly or indirectly or hold any press conference with respect to the issuance of the Initial Notes, the Company or any of its subsidiaries, the properties, business, results of operations, condition (financial condition or otherwise), affairs or prospects of the Company as you may from time or any of its subsidiaries, without the prior consent of the Initial Purchaser, such consent not to time reasonably request;be unreasonably withheld or delayed.
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(hr) To use its best commercially reasonable efforts to list, subject do and perform all things required or necessary to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of be done and performed under this Agreement, Agreement and the Company shall at other Operative Documents prior to or after the time of filing either pay Closing Date and to satisfy all conditions precedent on its part to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version delivery of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredInitial Notes.
Appears in 1 contract
Samples: Purchase Agreement (Innophos, Inc.)
Agreements of the Company. The Company agrees with each of the Underwriters:
you as follows: (a) To prepare the Prospectus in a form reasonably approved The Company will notify you promptly, and (if requested by you and to file in writing) will confirm such Prospectus pursuant to Rule 424(badvice in writing, (1) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when effectiveness of any amendment to the Registration Statement has been filed or becomes effective or and of the filing of any supplement to the Prospectus, (2) of any comments of the Commission regarding the Registration Statement or the Prospectus (or any of the documents incorporated by reference therein) or of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise youadditional information, promptly after it receives notice thereof, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any order preventing or suspending proceedings for that purpose, (4) of the use receipt by the Company of any Preliminary Prospectus or prospectus, of notification with respect to the suspension of the qualification of the Shares Offered Securities [or the Common Shares] for offering offer or sale in any jurisdiction, of jurisdiction or the initiation or threatening of any proceeding proceedings for any such purpose, or purpose and (5) of the happening of any request by event during the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, period mentioned in the event of the issuance of paragraph (d) below which makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Registration Statement or omit to state the Prospectus (as theretofore amended or supplemented) untrue or which requires the making of any material fact necessary changes in the Registration Statement or the Prospectus (as theretofore amended or supplemented) in order to make the statements therein, in the light of the circumstances under which they were made when such the Prospectus is delivereddelivered to a purchaser, not misleading, or, if for . The Company will use its reasonable best efforts to prevent the issuance of any other reason it shall be necessary during such period to amend order suspending the effectiveness of the Registration Statement or supplement suspending the Prospectus in order to comply with qualification of the Act Offered Securities [or the Exchange ActCommon Shares] for offer or sale in any jurisdiction, and if any such order is issued, the Company will make every reasonable effort to notify obtain the withdrawal of such order at the earliest possible moment.
(b) The Company will furnish to [each of] you, without charge, one conformed copy of the Registration Statement and any post-effective amendment thereto, including all financial statements and schedules, exhibits and documents incorporated therein by reference (including exhibits incorporated therein by reference to the extent not previously furnished to you).
(c) The Company will give you and upon your request advance notice of its intention to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Registration Statement or the Prospectus with respect to the Offered Securities, and will not file any such amendment or supplement to which will correct such statement or omission or effect such compliance;you shall reasonably object in writing.
(d) To During the period of time that the Prospectus is required by law to be delivered, the Company will deliver to each Underwriter, without charge, as many copies of the Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of the 2
(e) Prior to any public offering of the Offered Securities by the Underwriter[s], the Company will cooperate with you and your counsel in connection with the registration or qualification of the Offered Securities [and the Common Shares] for offer and sale under the securities or Blue Sky laws of, and the determination of the eligibility of the Offered Securities for investment under the laws of, such jurisdictions as you request; provided, that in no event shall the Company be obligated to qualify to do business as a foreign corporation or as a securities dealer in any jurisdiction where it is not now so qualified, to conform its capitalization or the composition of its assets to the securities or Blue Sky laws of any jurisdiction or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject. The Company will pay all reasonable fees and expenses (including reasonable counsel fees and expenses) relating to qualification of the Offered Securities [and the Common Shares] under such securities or Blue Sky laws and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions as you may designate.
(f) The Company will make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an consolidated earnings statement of the Company and the Subsidiaries statements (which need not be audited) complying with that satisfy the provisions 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;thereunder.
(eg) During the Lock-Up Period, the The Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) will pay all expenses in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Periodpreparation, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date printing and filing of the Registration Statement, to furnish to you any preliminary prospectus, the Prospectus, any legal investment memorandum and Blue Sky memorandum as contemplated by Section 4(e), (2) the preparation, issuance and delivery of the Offered Securities (other than transfer taxes) and the execution and delivery of the Indenture, (3) the printing of any Dealer Agreement, (4) furnishing such copies of all reports or other communications (financial or other) furnished to stockholdersthe Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, including any term sheets delivered by the Company pursuant to deliver to you (i) Rule 434 under the Act, as soon as they are available, copies of any reports and financial statements furnished to or filed may be requested for use in connection with the Commission or any national securities exchange on which any class of securities of the Company is listed; offering 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 Shares for Offered Securities by dealers to whom Offered Securities may be sold, and (5) any fees paid to rating agencies, if any, selected by the purposes set forth Company in connection with the Prospectus;rating of the Offered Securities.
(h) To use If this Agreement is terminated by you because any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied or because of any failure or refusal on the part of the Company to comply with the terms hereof or if for any reason the Company shall be unable to perform its best efforts to list, subject to notice of issuanceobligations hereunder, the Shares Company will reimburse the Underwriters for all out-of-pocket expenses (including the fees and expenses of your counsel) reasonably incurred by the Underwriters in connection herewith. The Company will not in any event be liable to the Underwriters for damages on the Nasdaq National Market;account of loss of anticipated profits.
(i) If From the Company elects date hereof to rely upon Rule 462(b)and including the Closing Date, the Company shall file will not offer or sell, or contract to sell, any Debt Securities with a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.maturity of more than one year, Washingtonincluding additional Offered Securities, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line a public offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.your prior written consent. 3
Appears in 1 contract
Samples: Underwriting Agreement (Tele Communications Inc /Co/)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters as follows:
(a) To The Company will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in a form reasonably approved the Prospectus, the price at which the Notes are to be purchased by you the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and to reallowances, if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Notes, and the Company will timely file such Prospectus supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act Act, but the Company will not later than file any amendments to the Commission’s close of business on Registration Statement as in effect with respect to the second business day following Notes or any amendments or supplements to the execution and delivery of this AgreementProspectus, or, if applicable, such earlier time as may be or any Free Writing Prospectus to the extent required by Rule 430A(a)(3433(d) under the Act; , unless it shall first have delivered copies of such amendments, supplements or Free Writing Prospectus to make no the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement to supplement, or if the Registration Statement or Prospectus prior to any Time of Delivery that Underwriters shall be disapproved by you have reasonably objected thereto promptly after reasonable notice receipt thereof; to the Company will immediately advise you, promptly after it receives the Underwriters or the Underwriters' counsel (i) when notice thereof, of is received from the time when SEC that any post-effective amendment to the Registration Statement has been filed become or becomes will become effective and (ii) of any order or any supplement communication suspending or preventing, or threatening to suspend or prevent, the Prospectus or any amended Prospectus has been filed offer and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order Notes or of any proceedings or examinations that may lead to such an order preventing or suspending the use of any Preliminary Prospectus communication, whether by or prospectus, of the suspension of SEC or any authority administering any state securities or Blue Sky law, as soon as the qualification of the Shares for offering or sale in any jurisdictionCompany is advised thereof, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to 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 withdrawal 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 order;Free Writing Prospectus, an "Assumed Free Writing Prospectus").
(b) Promptly from If, at any time to time to take such action as you may reasonably request to qualify following the Shares for offering and sale under the securities laws issuance of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation an "issuer free writing prospectus" or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and when the Prospectus at such locations and in such quantities as you may from time relating to time reasonably request during such period following the date hereof that a prospectus Notes is required to be delivered in connection with offers or sales of Sharesunder the Act, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred or occurs as a result of which such "issuer free writing prospectus" would conflict with the information in the Registration Statement or the Prospectus, or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary during such period time to amend or supplement the Prospectus in order to comply with the Act or the Exchange ActRules and Regulations, to the Company promptly will notify you the Representative of such event and upon your request to file such document and to will promptly prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of file with the SEC, at its own expense, an amended Prospectus "issuer free writing prospectus" or a an amendment or supplement to the such Prospectus which 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 or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the 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 documents relating to the Notes, in each case in such quantities as the Underwriters may reasonably request.
(e) The Company will cooperate with the Underwriters in listing the Class A Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriters 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 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 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 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 Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of documents or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Representative terminating this Agreement pursuant to Section 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 Notes hereunder will be applied substantially 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 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 Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Xxxxt Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust Stxxxxt Loans to show the absolute ownership by the Indenture Trustee, as eligible lender of, and the interest of the Company in, the initial Trust Student Loans, and the Company shall not take, or shall not permit any other person to take, any action inconsistent with the ownership of, and the interest of the Company in, the Trust Student Loans, other than as permitted by the Basic Documents
(o) For the period beginning on the date of this Agreement and ending 90 days hereafter, none of the Company and any entity affiliated, directly or indirectly, with the Company will, without the prior written notice to the Underwriters, offer to sell or sell notes (other than the Notes) collateralized by FFELP Loans; provided, however, that this shall not be construed to prevent the sale of FFELP Loans by the Company or any entity affiliated, directly or indirectly, with the Company.
(p) If, at the time the Registration Statement became effective, any information shall have been omitted therefrom in reliance upon Rule 430A under the 1933 Act, then, immediately following the execution of this Agreement, the Company will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, securityholders an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with 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 later of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to furnish the Registration Statement to you copies become effective prior to the date of all reports this Agreement and (iii) the date of the Company's most recent Annual Report or other communications (financial or other) furnished to stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or Form 10-K 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 prior to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and which will satisfy the Company shall at the time provisions of filing either pay to the Commission the filing fee for the Rule 462(bSection 11(a) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (SLC Student Loan Trust 2006-1)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters as follows:
(a) To The Company will prepare a supplement to the Prospectus setting forth the amount of the Series 2005-1 Notes covered thereby and the terms thereof not otherwise specified in a form reasonably approved the Prospectus, the price at which the Series 2005-1 Notes are to be purchased by you the Underwriters, either the initial public offering price or the method by which the price at which the Series 2005-1 Notes are to be sold will be determined, the selling concessions and to reallowances, if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Series 2005-1 Notes, and the Company will timely file such Prospectus supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act Securities Act, but the Company will not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement file any amendments to the Registration Statement as in effect with respect to the Series 2005-1 Notes or Prospectus prior any amendments or supplements to any Time the Prospectus, unless it shall first have delivered copies of Delivery that such amendments or supplements to the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement or if the Underwriters shall be disapproved by you have reasonably objected thereto promptly after reasonable notice receipt thereof; to the Company will immediately advise you, promptly after it receives the Underwriters or the Underwriters' counsel (i) when notice thereof, of is received from the time when SEC that any post effective amendment to the Registration Statement has been filed become or becomes effective will become effective; and (ii) of any order or any supplement communication suspending or preventing, or threatening to suspend or prevent, the Prospectus or any amended Prospectus has been filed offer and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order Series 2005-1 Notes or of any proceedings or examinations that may lead to such an order preventing or suspending the use of any Preliminary Prospectus communication, whether by or prospectus, of the suspension of SEC or any authority administering any state securities or Blue Sky law, as soon as the qualification of the Shares for offering or sale in any jurisdictionCompany is advised thereof, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to and will use its best efforts to prevent the issuance of any such order or communication and to obtain the withdrawal of such order;
as soon as possible its lifting, if issued. (b) Promptly from If, at any time to time to take such action as you may reasonably request to qualify the Shares 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 Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and when the Prospectus at such locations and in such quantities as you may from time relating to time reasonably request during such period following the date hereof that a prospectus Series 2005-1 Notes is required to be delivered in connection with offers or sales of Sharesunder the Securities Act, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occurs 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 a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary during such period time to amend or supplement the Prospectus in order to comply with the Securities Act or the Exchange ActRules and Regulations, to the Company promptly will notify you each of the Underwriters of such event and upon your request to file such document and to will promptly prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of file with the SEC, at its own expense, an amended Prospectus amendment or a supplement to the such Prospectus which that will correct such statement or omission or an amendment that will effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable. Neither the Underwriters' consent to, but in nor the Underwriters' delivery of, any event not later than eighteen months after the effective date such amendment or supplement shall constitute a waiver of any of the Registration Statement, an earnings statement of conditions set forth in Section 6 hereof. (c) The Company will immediately inform the Company and the Subsidiaries Underwriters (which need not be audited) complying with Section 11(ai) of the Act and Rule 158 under receipt by the Act covering a period Company of at least 12 months beginning after any communication from the effective date SEC or any state securities authority concerning the offering or sale of the Registration Statement;
(e) During the LockSeries 2005-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 listed1 Notes; and (ii) such additional information concerning the business and financial condition of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Series 2005-1 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, and all amendments and supplements to such documents relating to the Series 2005-1 Notes, in each case in such quantities as you the Underwriters may from time to time reasonably request;. (e) No amendment or supplement will be made to the Registration Statement or Prospectus which the Underwriters shall not previously have been advised or to which it shall reasonably object after being so advised. (f) The Company will cooperate with the Underwriters and with their counsel in connection with the qualification of, or procurement of exemptions with respect to, the Series 2005-1 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 Series 2005-1 Notes, in any jurisdiction where it is not now so subject.
(g) To apply The Company consents to the net proceeds from use, in accordance with the sale securities or Blue Sky laws of such jurisdictions in which the Series 2005-1 Notes are offered by the Underwriters and by dealers, of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) Prospectus furnished by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersInitial Purchasers as follows:
(a) To prepare During the Prospectus in a form reasonably approved by you and period ending 90 days after the date hereof to file such Prospectus pursuant to Rule 424(b) under advise the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicablerequested, confirm such earlier advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Act; in order to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time statements therein, in light of Delivery that shall be disapproved by you promptly after reasonable notice thereofthe circumstances under which they were made, not misleading; to advise you, the Initial Purchasers promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 the Preliminary Prospectus Offering Memorandum or prospectusthe Offering Memorandum, of the suspension of the qualification of the Shares Debentures for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of and to use its reasonable best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Offering Memorandum or prospectus of the Offering Memorandum or suspending any such qualificationqualification and, promptly if any such suspension is issued, to use its reasonable best efforts effort to obtain the withdrawal of such order;lifting thereof at the earliest possible time.
(b) Promptly from time To furnish promptly to time to take such action the Initial Purchasers and counsel for the Initial Purchasers, without charge, as you may reasonably request to qualify many copies of the Shares for offering Preliminary Offering Memorandum and sale under the securities laws Offering Memorandum (and 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 any amendments or supplements thereto) as may be necessary reasonably requested; to complete furnish to the distribution Initial Purchasers on the date hereof a copy of the Sharesindependent accountants' report included in the Offering Memorandum signed by the accountants rendering such report; and the Company hereby consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, providedand any amendments and supplements thereto, that in connection therewith with resales of the Company shall not be required Debentures to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;the Subsequent Purchasers.
(c) Prior to 10:00 a.m., Richmond, Virginia time, on If the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies delivery of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus Offering Memorandum is required to be delivered at any time in connection with offers or sales the sale of Shares, and, if the delivery of a prospectus is required during this period Debentures and if at such time any event events shall have occurred as a result of which the Prospectus Offering Memorandum 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 light of the circumstances under which they were made when such Prospectus the Offering Memorandum is delivered, not misleading, or, or if for any other reason it shall be necessary during at such period time to amend or supplement the Prospectus Offering Memorandum in order to comply with the Act or the Exchange Actany law, to notify you and upon your request to file such document the Initial Purchasers immediately thereof, and to promptly prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of the Initial Purchasers an amended Prospectus Offering Memorandum or a supplement to the Prospectus Offering Memorandum so that statements in the Offering Memorandum, as so amended or supplemented, will not, in light of the circumstances under which they were made when it is so delivered, be misleading, or so that the Offering Memorandum will correct comply with applicable law. The Initial Purchasers' delivery of any such statement amendment or omission or effect such compliance;supplement shall not constitute a waiver of any of the conditions set forth in Section 7 hereof.
(d) To make generally available During the three-year period following the First Delivery Date, for so long as and at any time that it is not subject to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a13 or 15(d) of the Act Exchange Act, upon request of any holder of the Debentures, to furnish to such holder, and to any prospective purchaser or purchasers of the Debentures designated by such holder, information satisfying the requirements of Rule 158 144A(d)(4) under the Act covering a period of at least 12 months beginning after Securities Act. This covenant is intended to be for the effective date benefit of the Registration Statement;holders from time to time of the Debentures, and prospective purchasers of the Debentures designated by such holders.
(e) During In connection with the Lock-Up Periodoffering of the Debentures, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers.
(f) To use its reasonable best efforts to do and perform all things required to be done and performed under this Agreement by it that are within its control prior to or after the First Delivery Date and to use reasonable efforts to satisfy all conditions precedent on its part to the delivery of the Debentures.
(g) Except following the effectiveness of the Shelf Registration Statement, to not authorize or knowingly permit any person acting on its or their behalf to, solicit any offer to buy or offer to sell the Debentures by means of any form of general solicitation or general advertising (as such terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) To not, and to use its reasonable best efforts to ensure that no affiliate (as such term is defined in Rule 501(b) under the Securities Act) of the Company shall not, directly or indirectlywill, offer, sell, offer sell or solicit offers to sell, contract to sell, pledge, grant any option to purchase buy or otherwise sell or dispose of, except negotiate in respect of any "security" (as provided hereunder, any securities defined in the Securities Act) which could be integrated with the sale of the Company Debentures in a manner that are substantially similar to would require the Shares, including but not limited to any shares of Common Stock or any other capital stock registration of the Company or any securities that are convertible into or exchangeable for, or that represent Debentures under the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than Securities Act.
(i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisitionTo not, so long as the recipients Debentures are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Company’s securities agree in writing prior to the consummation of any such transactionInvestment Company Act, pursuant to an instrument in form and substance reasonably satisfactory to BBTCMor be or become, or be or become owned by, a closed-end investment company required to be bound by registered under Section 8 of the provisions of this Section 5(eInvestment Company Act, but not registered thereunder.
(j) To cooperate with the Initial Purchasers and counsel for the remainder Initial Purchasers to qualify the Debentures for offering and sale under the securities laws of such jurisdictions as the Initial Purchasers may reasonably 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 Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMDebentures; provided, however, that if 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 or to subject it to taxation in any jurisdiction where it is not so qualified or so subject.
(1k) during To use its reasonable best efforts to comply with the last 17 days Registration Rights Agreement and all agreements set forth in the representation letters of the initial Lock-Up Period, the Company releases earnings results or material news or a material event to The Depository Trust Company relating to the approval of the Debentures for "book-entry" transfers.
(l) In connection with the offering, until the Initial Purchasers shall have notified the Company occurs of the completion of the resale of the Debentures, to not and to use its reasonable best efforts to not permit any affiliated purchasers (as defined in Rule 10b-6 under the Exchange Act), either alone or with one or more other persons, to bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Debentures, or attempt to induce any person to purchase any Debentures; and to not and to use its reasonable best efforts to not permit any of its affiliated purchasers to make bids or purchases for the purpose of creating actual, or apparent, active trading in or of raising the price of the Debentures.
(2m) Prior to the First Delivery Date, to not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, or business prospects, without the prior consent of the Initial Purchasers, unless in the judgment of the Company and its counsel, and after notification to the Initial Purchasers, such press release or communication is required by law.
(n) To not take any action prior to the expiration execution and delivery of the initial Lock-Up PeriodIndenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture.
(o) To not take any action prior to the First Delivery Date which in the Company's reasonable judgment would require the Offering Memorandum to be amended or supplemented pursuant to Section 5(c) hereof.
(p) To maintain a transfer agent and, if necessary under the laws of the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for the Common Stock.
(q) For a period of five (5) years from the date hereof, to use its best efforts to maintain the PORTAL (or after the Shelf Registration Statement, New York Stock Exchange listing) listing of the Debentures, to the extent outstanding, and the New York Stock Exchange listing of the Common Stock.
(r) For a period of 120 days from the date of the Offering Memorandum, not to offer, sell, contract to sell or otherwise dispose of any securities of the Company announces that it will release earnings results during (other than the 16-day period beginning on the last day of the initial Lock-Up PeriodSecurities or pursuant to employee stock option plans or pursuant to options, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning warrants or rights outstanding on the date of release of the earnings results or the occurrence of the material news or material eventthis Agreement), as applicable, unless BBTCM waives, in writing, such extension;without your prior written consent.
(fs) During a period of three five years from the effective date of the Registration Statementhereof, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholdersshareholders, and to 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;.
(gt) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredOffering Memorandum.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such the Prospectus pursuant to Rule 424(b) under the Securities Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Securities Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Statement, the Time of Delivery that Sale Prospectus or the Prospectus which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Time of Sale Prospectus or the Prospectus or any amended Time of Sale Prospectus or Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary the Time of Sale Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Time of Sale Prospectus or the 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 the Time of Sale Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such order;its withdrawal.
(b) To furnish to the Representative a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representative reasonably objects.
(c) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) 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 which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable 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 (whose names and addresses the Representative will furnish to the Company) to which Securities may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(f) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;.
(cg) Prior to 10:00 a.m.As soon as practicable, Richmond, Virginia time, on but not later than the business day next succeeding the date of this Agreement and from time to timeAvailability Date (as defined below), to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 months beginning after the effective date of the Registration Statement which will satisfy the provisions of Section 11(a) of the Securities Act (for the purpose of this subsection 5(g) only, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes the effective date of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunderthat, any securities of if such fourth fiscal quarter is the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients last quarter of the Company’s securities agree in writing prior fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter).
(h) To furnish to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder holders of the Lock-Up Period Securities as if such recipients were soon as practicable after the Companyend of the each fiscal year an annual report (including a balance sheet and statements of operations, changes in stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, make available to the holders of the Securities 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), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days consolidated summary financial information of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then and its consolidated subsidiaries for such quarter in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;reasonable detail.
(fi) During a period of three 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 stockholdersshareholders, and to 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 listedlisted or the Nasdaq Stock Market, Inc.; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;.
(gj) For a period of 120 days from the effective date of the Registration Statement, not to offer, sell, contract to sell or otherwise dispose of any securities of the Company which are substantially similar to the Securities (other than the Securities or pursuant to (i) employee stock option or stockholder dividend reinvestment plans, or (ii) merger and acquisition transactions, (iii) currently outstanding warrants or options) without your prior written consent.
(k) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the UnderwritersInitial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; andevent that, in the event reasonable opinion of counsel to the issuance of Company, makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Offering Memorandum untrue in any material fact necessary respect or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, ormisleading in any material respect. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. The Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus in order Offering Memorandum prior to comply with the Act Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy of the applicable amendment or supplement. The Company shall promptly prepare, upon the Exchange ActInitial Purchasers' request, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Offering Memorandum that may be necessary or omission or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resale, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of either counsel to the Company or counsel to the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the Act circumstances when such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading in any material respect, or if it is necessary or advisable to amend or supplement the Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchasers of such occurrence and Rule 158 under (ii) forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the Act covering a period of at least 12 months beginning after statements therein as so amended or supplemented will not, in the effective date light of the Registration Statement;circumstances when it is so delivered, be misleading in any material respect, or so that such Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Initial Purchasers and counsel to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchasers in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets Notes under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchasers may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMExempt Resales; provided, however, however that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results shall not be required in connection therewith to register or material news qualify as a foreign corporation where it is not now so qualified or a material event to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Company occurs Offering Memorandum or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waivesExempt Resales, in writing, such extension;any jurisdiction where it is not now so subject.
(f) During a period of three years from Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective date or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the Registration Statementobligations of the Company hereunder, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you including in connection with: (i) as soon as they are availablethe preparation, printing, filing and distribution of the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the issuance, transfer and delivery by the Company of the Notes to the Initial Purchasers, (iii) the qualification or registration of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of preparing, printing and mailing a preliminary and final Blue Sky Memorandum and the reasonable fees and disbursements of counsel to the Initial Purchasers relating thereto), (iv) furnishing such copies of any reports the Offering Memorandum, and financial statements furnished to or filed all amendments and supplements thereto, as may be requested by the Initial Purchasers for use in connection with Exempt Resales, (v) the preparation of certificates for the Notes, (vi) the fees, disbursements and expenses of the Company's counsel and accountants, (vii) all expenses and listing fees in connection with the Commission or any national securities exchange on which any class application for quotation of securities the Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (viii) all fees and expenses (including fees and expenses of counsel to the Company) of the Company is listed; in connection with the approval of the Notes by DTC for "book-entry" transfer, (ix) the reasonable fees and expenses of the Trustee and its counsel in connection with the Indenture and the Notes, (x) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (iixi) such additional information concerning "roadshow" travel and other expenses incurred in connection with the business marketing 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredNotes.
Appears in 1 contract
Samples: Purchase Agreement (Covad Communications Group Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be Date which is disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; information and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 Shares; provided, providedhowever, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of the Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders shareholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, shareholders and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission Commission, the Nasdaq Stock Market or any national securities exchange on which any class of securities of the Company is then listed; and (ii) such additional information concerning the business and financial condition of the Company and its Subsidiaries as you may from time to time reasonably request;
(gf) To apply the net proceeds from the sale of the Shares for the purposes set forth in the ProspectusProspectus and report the use of such proceeds in accordance with Rule 463 under the Act;
(g) The Company will, from time to time, after the effective date of the Registration Statement file with the Commission such reports as are required by the Act, the Exchange Act, and the rules and regulations of the Commission thereunder, and shall also file with state securities commissions in states where the Shares have been sold by you (as you shall have advised us in writing) any such reports as are required to be filed by the securities acts and the regulations of those states;
(h) To use During a period of three years after the effective date of the Registration Statement, to furnish to the Company's 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 flows of the Company and its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Marketconsolidated Subsidiaries certified by independent public accountants);
(i) If at any time during the 25 day period after the Registration Statement is declared effective, any rumor, publication or event relating to or affecting the Company elects shall occur as a result of which, in your opinion, the market price for the Common Stock has been or is likely to rely upon Rule 462(bbe materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company shall file a Rule 462(b) Registration Statement will, after written notice from you advising it to do so, prepare, consult with you concerning the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreementsubstance of, and the Company shall at the time of filing either pay disseminate a press release or other public statement, reasonably satisfactory to the Commission the filing fee for the Rule 462(b) Registration Statement you, responding to or give irrevocable instructions for the payment of commenting on such fee pursuant to Rule 111(b) under the Act; andrumor, publication or event;
(j) Upon Neither the reasonable request Company, any of its Subsidiaries, nor any Underwriterof the officers, directors or affiliates of the Company or any of its Subsidiaries will take, directly or indirectly, any action designed to furnishcause or result in, or which might constitute or be expected to constitute, stabilization or manipulation of the price of the Common Stock;
(k) The Company will cause the Shares to be furnished, listed on the Nasdaq Stock Market's National Market (or such other trading market as shall be approved by you) at each Delivery Date and will use its best efforts to such Underwriter an electronic version cause the Shares to be so listed for at least one year from the date hereof;
(l) The Company will not invest or otherwise use the proceeds received by the Company from its sale of the Company’s trademarks, servicemarks and corporate logo for use on Shares in such a manner as would require the websiteCompany to register as an investment company under the 1940 Act;
(m) The Company will maintain a transfer agent and, if anynecessary under the laws of the State of Georgia, operated by such Underwriter a registrar for the purpose of facilitating the on-line offering of the SharesCommon Stock; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.and
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be Date which is reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective effective, or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use its best promptly all commercially reasonable efforts to obtain the withdrawal of such order;its withdrawal.
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 Shares; provided that, 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;.
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 Prospectus, as then amended or supplemented 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 light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus Prospectus, which will correct such statement or omission or effect such compliance;.
(d) To make generally available to its stockholders shareholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statementyou, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Shares or pursuant to the Company’s benefit employee stock option or incentive plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, Agreement or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect pursuant to such merger or acquisition, so long as the recipients of the Company’s securities bona fide gifts to persons who agree in writing prior to with the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, donor to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Companyrestriction), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;First Union Capital Markets Corp.
(f) During a period of three 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 stockholdersshareholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission Commission, the Nasdaq Stock Market 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 Firm Shares for the purposes set forth in the Prospectus;Prospectus and report the use of such proceeds in accordance with Rule 463 under the Act.
(h) To use its best efforts The Company will comply with all of the provisions of any undertakings contained in the Registration Statement. The Company will, from time to listtime, subject to notice after the effective date of issuancethe Registration Statement file with the Commission such reports as are required by the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, and shall also file with state securities commissions in states where the Shares on have been sold by you (as you shall have advised us in writing) any such reports as are required to be filed by the Nasdaq National Market;securities acts and the regulations of those states.
(i) If at any time during the 25 day period after the Registration Statement is declared effective, any rumor, publication or event relating to or affecting the Company elects shall occur as a result of which, in your opinion, the market price for the Common Stock has been or is likely to rely upon Rule 462(bbe materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company shall file a Rule 462(b) Registration Statement will, after written notice from you advising it to do so, prepare, consult with you concerning the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreementsubstance of, and the Company shall at the time of filing either pay disseminate a press release or other public statement, reasonably satisfactory to the Commission the filing fee for the Rule 462(b) Registration Statement you, responding to or give irrevocable instructions for the payment of commenting on such fee pursuant to Rule 111(b) under the Act; andrumor, publication or event.
(j) Upon Neither the Company nor any of its officers, directors or affiliates will take, directly or indirectly, any action designed to cause or result in, or which might constitute or be expected to constitute, stabilization or manipulation of the price of the Common Stock.
(k) The Company will cause the Shares to be listed on the Nasdaq Stock Market's National Market (or such other trading market as shall be approved by you) at each Delivery Date and will use all commercially reasonable request efforts to cause the Shares to be so listed for at least three years from the date hereof.
(l) The Company will not invest or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the 1940 Act.
(m) The Company will maintain a transfer agent and, if necessary under the laws of the State of Georgia, a registrar for the Common Stock.
(n) Prior to the First Delivery Date (and, if applicable, the Second Delivery Date), the Company will furnish to you, as soon as they have been prepared, copies of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version unaudited interim consolidated financial statements of the Company’s trademarks, servicemarks Company and corporate logo its Subsidiaries for use any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(o) The Company has filed a registration statement on Form 8-A with the website, if any, operated by such Underwriter Commission providing for the purpose of facilitating the on-line offering registration of the Shares; providedShares under the Exchange Act, however, that and such registration shall remain effective prior to and after the foregoing license shall be used solely First Delivery Date and Second Delivery Date for as long as the purpose described above, Company is granted without any fee and may not be assigned or transferreda reporting company under the Exchange Act.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as As soon as practicable, but in any event not later than eighteen months practicable after the effective date of the Registration Statement, to make generally available to its shareholders and to deliver to you, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Securities or pursuant to the Company’s benefit employee stock option plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, Agreement or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect pursuant to such merger or acquisition, so long as the recipients of the Company’s securities bona fide gifts to persons who agree in writing prior to with the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, donor to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Companyrestriction), without the your prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionconsent;
(f) During a period of three 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 stockholdersshareholders, and to 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;; and
(g) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may reasonably 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable after the effective date of the Registration Statement, to make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statementyou, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 90 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities shares of the Company that are substantially similar to the Shares, including but not limited to any Company's Common Stock or securities exercisable for or convertible into shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Securities or pursuant to the Company’s benefit employee stock option or stockholder dividend reinvestment plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, Agreement or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect pursuant to such merger or acquisition, so long as the recipients of the Company’s securities bona fide gifts to persons who agree in writing prior to with the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, donor to be bound by the provisions of this Section 5(erestriction) for the remainder of the Lock-Up Period as if such recipients were the Company), without the your prior written consent, which consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will shall not be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionunreasonably withheld;
(f) During a period of three 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 stockholders, and to 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 Board of Governors, the FDIC, the Commission, any national securities exchange or quotation system on which any class of securities of the Company is listedlisted or included; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;; and
(g) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (Mid Atlantic Community Bankgroup Inc)
Agreements of the Company. The Company hereby agrees with each of the UnderwritersAgent that:
(a) To prepare The Company will use its best efforts to cause the Prospectus Registration Statement to be declared effective by the SEC. The Company will notify the Agent immediately and confirm the notice in a form reasonably approved writing thereto (i) of any request by you and or the receipt of any comments from the SEC with respect to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of transactions contemplated by this Agreement, or, if applicable, such earlier time as may be required ; (ii) of any request by Rule 430A(a)(3) under or any comments or other communications received from the Act; to make no SEC and any request by the SEC for any amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise youthe Prospectus, promptly after it receives notice thereof, of the time when any amendment or for additional information with respect to the Registration Statement has been filed transactions contemplated therein or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus Offering; and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, (iii) of the issuance by the Commission SEC or any court or governmental agency or body of any stop order or other order suspending or enjoining the effectiveness or approval of the Registration Statement, the Prospectus or the Offering or of the institution of any order preventing proceedings for that purpose or suspending the use of any Preliminary Prospectus or prospectus, notification of the suspension of the qualification of the Shares for offering or sale Debentures in any jurisdiction, of jurisdiction or the initiation or threatening of any proceeding for that purpose or the threat of any such purpose, or of any request action. The Company will make every reasonable effort to prevent the issuance by the Commission for the amending SEC and any court or supplementing of the Registration Statement governmental agency or Prospectus or for additional information; and, in the event of the issuance body of any stop order or other such order, or request for amendment or additional information or the commencement of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending proceeding and, if any such qualificationorder, promptly to use its best efforts request or proceeding shall at any time be issued or commenced, to obtain the withdrawal of such order;lifting thereof, to respond thereto or to obtain the termination thereof at the earliest possible moment.
(b) Promptly The Company will deliver to the Agent, without charge, from time to time to take such action number of copies of the Prospectus and related documents (as you amended or supplemented), as the Agent may reasonably request. The Company authorizes the Agent, subject to all requirements of applicable law, to use the Prospectus (as the same may be amended or supplemented) in connection with the sale of the Debentures.
(c) The Company will deliver to the Agent at least two complete copies (including exhibits) of its Registration Statement on Form SB-2 as originally filed with the SEC and of each amendment thereto.
(d) The Company will comply, at its own expense, with all requirements imposed upon it by the SEC and by the Act, the Exchange Act and the SEC Rules and Regulations, including, without limitation, Rules 10b-5 and 10b-6 under the Exchange Act, in each case as from time to time in effect, so far as necessary to permit the continuance of offers, sales or dealings in Debentures during such period in accordance with the provisions hereof and the Prospectus.
(e) If, at any time during the period when the Prospectus is required by law to be delivered, any event occurs as a result of which, in the opinion of counsel to the Company or the Agent, the Prospectus, including any amendments or supplements, would contain 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 the light of the circumstances under which they were made, not misleading, or if it is necessary in the opinion of counsel to the Company or the Agent at any time to amend or supplement the Prospectus, including any amendments or supplements to comply with the Act and all other laws, the Company, as appropriate, will promptly advise the Agent thereof and will promptly prepare and file with the SEC and any other authority with jurisdiction an amendment or supplement.
(f) The Company will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as disclosed in the Prospectus.
(g) The Company will not acquire any Debentures prior to the Closing Date.
(h) During the period of three years after the date of the Prospectus, the Company will furnish to the Agent upon request (i) as soon as practicable after the end of each fiscal year, the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and corresponding statements of income, stockholders' equity and changes in financial position for the year then ended, such financial statements to qualify be certified by independent public accountants; (ii) as soon as practicable after the Shares end of each fiscal quarter (other than the last quarter of each fiscal year), an unaudited balance sheet and statements of income, stockholders' equity and changes in financial position of the Company as at the end of and for such quarter; (iii) as soon as available, a copy of each proxy statement, financial statement and periodic and special reports of the Company mailed to holders of any class of its securities registered under Section 12 of the Exchange Act; (iv) as soon as practicable after the filing thereof, of each report or other statement or document filed by the Company with the SEC or other regulatory agency or with any national securities exchange or quotation system on which any securities of the Company may be listed or quoted; and (v) from time to time, such other information concerning the Company as the Agent may reasonably request.
(i) The Company will comply or cause to be complied with the conditions to the obligations specified in Section 11 hereof.
(j) The Company shall promptly prepare and file with the SEC, from time to time, such reports as may be required to be filed by the SEC Rules and Regulations, including, without limitation, reports with respect to the sale of the Debentures and the application of the proceeds thereof as may be required in accordance with Rule 463 under the Act.
(k) The Company shall comply in all material respects with the undertaking given by the Company in connection with the qualification of the Debentures for offering and sale under the Blue Sky Laws.
(l) The Company shall use the net proceeds from the sale of the Debentures in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(m) The Company will not, for a period of 90 days after the date hereof, without the prior written consent of the Agent, offer for sale, sell or issue, contract to sell or otherwise dispose of, any Debentures of, or any securities laws convertible into or exercisable for, Debentures issued pursuant to the Offering or sell or grant any options, rights or warrants with respect to Debentures.
(n) Other than as permitted by applicable law, the Company will not distribute any Prospectus or other offering material in connection with the subject offering and sale of the Debentures.
(o) The Company will qualify the Debentures under the Blue Sky Laws of such jurisdictions as you the Company and the Agent mutually agree to make such applications, file such consents to service of process or other documents and furnish such other information as may request be reasonably requested for that purpose and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long a period as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) Agent may mutually agree. The Company will notify the Agent immediately of, and confirm in writing, the suspension of qualification of the Act and Rule 158 under Debentures or the Act covering a period threat of at least 12 months beginning after the effective date such action in any jurisdiction. In each jurisdiction where any of the Registration Statement;
(e) During the Lock-Up PeriodDebentures shall have been qualified as provided above, the Company shall notwill make and file such statements and reports as are required by, directly or indirectlyin the future may be required by, offerthe laws of such jurisdiction.
(p) At the Closing Date, sellthe Company will have completed the Offering in all material respects as described in the Prospectus and in accordance with all applicable laws, offer to sellregulations, contract to sell, pledge, grant any option decisions and orders of the SEC and state securities authorities.
(q) The Company will maintain appropriate arrangements with the Escrow Agent for depositing all funds received from persons mailing subscriptions for or orders to purchase or otherwise sell or dispose ofDebentures in the Offering in an account bearing interest at the rate, except as provided hereunderif any, any securities described in the Prospectus until the Closing Date and satisfaction of the Company that are substantially similar all conditions precedent to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients release of the Company’s securities agree 's obligation to refund payments received from persons subscribing for or ordering Debentures in writing prior the Offering as described in the Prospectus or until refunds of such funds have been made to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period persons entitled thereto as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth described in the Prospectus;.
(hr) To The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If encourage and assist a market maker to establish and maintain a market for the Debentures, and (ii) obtain approval for and maintain quotation of the Debentures on the Small-Cap Market of the NASDAQ system effective on or prior to the Closing Date. The Company elects will take such actions and furnish such information as are reasonably requested by the Agent in order for the Agent to rely upon Rule 462(b)ensure compliance with the NASD "Interpretation With Respect to Free Riding and Withholding."
(s) The Company will conduct its business in compliance in all material respects with all applicable federal and state laws, rules, regulations, decisions, directives and orders, including all decisions, directives and orders of the SEC.
(t) The Company shall file a Rule 462(b) Registration Statement with not deliver the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement Debentures until it has satisfied or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause caused to be furnished, to satisfied in all material respects each and every condition set forth in Section 11 hereof unless such Underwriter an electronic version of condition is waived in writing by the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredAgent.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to The Company will ------------------------- not file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no any amendment or supplement to the Registration Statement Statements or the Prospectus prior unless a copy has first been submitted to any Time of Delivery that shall be disapproved by you the Underwriter a reasonable time before its filing and the Underwriter has not reasonably objected to it in writing within a reasonable time after receiving the copy.
(b) The Company will promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, the Underwriter (1) of the time when initiation or threatening of any amendment to the Registration Statement has been filed proceedings for, or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed receipt by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectusnotice with respect to, of the suspension of the qualification of the Shares Bonds for offering or sale in any jurisdiction, of the initiation jurisdiction or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order by the Commission suspending the effectiveness of the Registration Statements and (2) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statements, any preliminary prospectus or the Prospectus or to the transactions contemplated by this Agreement. The Company will make every reasonable effort to prevent the issuance of an order preventing or suspending the use effectiveness of any Preliminary Prospectus or prospectus or suspending the Registration Statements and, if any such qualificationorder is issued, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action its lifting as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions soon as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;possible.
(c) Prior The Company will deliver to 10:00 a.m.the Underwriter without charge one signed copy, Richmondor one conformed copy certified by an officer of the Company, Virginia time, on of each of the business day next succeeding the date Registration Statements and of this Agreement any amendments thereto (including all exhibits filed with any such document) and from time to time, to furnish the Underwriters with written and electronic as many conformed copies of the Registration Statement and Statements as the Prospectus at such locations and in such quantities as you Underwriter may from time to time reasonably request during request.
(d) During such period following the date hereof that as a prospectus is required by law to be delivered in connection with offers by the Underwriter or sales a dealer, the Company will deliver, without charge, to the Underwriter and to dealers, at such office or offices as the Underwriter may designate, as many copies of Sharesthe Prospectus as the Underwriter may reasonably request, and, during such period (not exceeding nine months) after the Effective Date if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occurs 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 it is necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to make the statements in it, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if during such period it is necessary to amend or supplement the Prospectus to comply with the Securities Act or Rules, the Exchange ActCompany will promptly prepare, submit to the Underwriter, file, subject to paragraph (a) of this Section, with the Commission and deliver, without charge, to notify you and upon your request to file such document and to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many written dealers (whose names and electronic copies as you addresses the Underwriter will furnish to the Company) to whom Bonds may from time have been sold by the Underwriter, and to time reasonably request of an amended Prospectus other dealers on request, amendments or a supplement supplements to the Prospectus which so that the statements in the Prospectus, as so amended or supplemented, will correct not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading in any material respect and will comply with the Securities Act and the Rules; provided that should such statement event relate solely to the activities of the Underwriter, then the Underwriter shall assume the expense of preparing and furnishing any such amendment or omission supplement. In case the Underwriter is required to deliver a Prospectus after the expiration of nine months from the Effective Date, the Company, upon the request of the Underwriter, will furnish to the Underwriter, at the expense of the Underwriter, a reasonable quantity of an amendment or effect supplement complying with Section 10(a) of the Securities Act. Delivery by the Underwriter of any such compliance;amendments or supplements to the Prospectus will not constitute a waiver of any of the conditions in Section 6.
(de) To The Company will make generally available to its stockholders and to deliver to you the Company's security holders, as soon as practicable, practicable but in any no event not later than eighteen months after the effective date last day of the Registration Statement15th full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement satisfying the provisions of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and Rule 158 of the Rules.
(f) The Company will take such actions as the Underwriter reasonably designates in order to qualify the Bonds for offer and sale under the Act covering a period securities or "blue sky" laws of at least 12 months beginning after such jurisdictions as the effective date Underwriter reasonably designates.
(g) The Company will pay, or reimburse if paid by the Underwriter, whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including costs and expenses relating to (1) the preparation, printing and filing of the Registration Statement;
(e) During the Lock-Up PeriodStatements and exhibits thereto, each preliminary prospectus, the Company shall notProspectus, directly or indirectly, offer, sell, offer all amendments and supplements to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose ofthe Registration Statements and the Prospectus, except as provided hereunderin Section 5(d), any securities the printing or other reproduction of the [________] Supplemental Indenture, which [_________] Supplemental Indenture is to be promptly filed and recorded after execution and delivery of it to the Trustees, in the counties where the mortgaged property of the Company that are substantially similar is located, (2) the authorization and issuance of the Bonds and the preparation and delivery of the forms of the Bonds sold by the Company to the SharesUnderwriter, (3) the registration or qualification of the Bonds for offer and sale under the securities or "blue sky" laws of the jurisdictions referred to in the foregoing paragraph and the determination of the legality of the Bonds for investment, including but the reasonable fees and disbursements of counsel for the Underwriter (not limited to any shares exceed $______) in that connection, and the preparation and printing of Common Stock or any other capital stock preliminary and supplemental "blue sky" memoranda and legal investment memoranda, (4) except as provided in Section 5(d), the furnishing (including costs of shipping and mailing) to the Underwriter and to dealers of copies of the Company Registration Statements, each preliminary prospectus, the Prospectus, and all amendments or any securities that are convertible into or exchangeable forsupplements to the Prospectus, or that represent the right to receive, Common Stock or any other capital stock and of the Company or other documents required by this Section to be so furnished, (5) any such substantially similar fees charged by securities rating services for rating the Bonds, (other than (i6) pursuant all transfer taxes, if any, with respect to the Company’s benefit plans existing onsale and delivery of the Bonds by the Company to the Underwriter, and (7) the fees and expenses of the Trustees, and Paying Agent or upon Registrar under the conversion or exchange [_________] Supplemental Indenture and the reasonable fees and disbursements of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) counsel for any Trustee in connection with the merger with or acquisition of another corporation or entity [_________] Supplemental Indenture or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredBonds.
Appears in 1 contract
Samples: Underwriting Agreement (Minnesota Power & Light Co)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this AgreementAgreement or transmit the Prospectus by means reasonably calculated to result in filing with the Commission by that date, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be disapproved by you in writing promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 SharesSecurities, 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;
(c) Prior to 10:00 a.m.A.M., RichmondCharlotte, Virginia North Carolina time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters and the Selling Shareholders with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as As soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, to make generally available to its shareholders and to deliver to you, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During the Lock-Up Periodperiod beginning from the date hereof and continuing to and including the date 180 days after the date of the First Delivery Date, the Company shall notnot to, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the SharesSecurities, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s 's benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (iiAgreement,(ii) in connection with by the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients exercise of the Company’s securities agree in writing prior to the consummation of any such transaction, 's Common Stock Purchase Rights or (iii) pursuant to an instrument in form and substance reasonably satisfactory to BBTCMa merger, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Companyacquisition or other business combination), without the your prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionconsent;
(f) During a period of three years after the effective date of the Registration Statement, upon request, to furnish to the Company's 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 flows of the Company and its consolidated Subsidiaries 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 first fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its Subsidiaries for such quarter in reasonable detail;
(g) During a period of three 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 stockholders, and to 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 publicly-disclosed 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 Shares for the purposes set forth in the Prospectus;; and
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its reasonable best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, to make generally available to its stockholders shareholders (within the meaning of Rule 158 under the Act) and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statementyou, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to without the Sharesprior written consent of Wheat, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable forFirst Securities, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities Inc. (other than (i) pursuant 1,000,000 shares of Common Stock to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding be used as of, the date of this Agreement, or (ii) consideration in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as practices if the recipients of the Company’s securities such shares agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for until 180 days after the remainder of date hereof, and (ii) the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, Securities to be sold by the Company releases earnings results hereunder or material news pursuant to employee stock option plans or a material event relating pursuant to the Company occurs options, warrants or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning rights outstanding on the date of release of this Agreement or granted hereafter pursuant to the earnings results Xxxxxx Dental Management Services, Inc. 1995 Employee Stock Option Plan or the occurrence of Xxxxxx Dental Management Services, Inc. 1995 Stock Option Plan for Managed Dental Centers so long as such options are not exercisable within 180 days after the material news or material event, as applicable, unless BBTCM waives, in writing, such extensiondate hereof);
(f) During a period of three five (5) years from after the effective date of the Registration Statementhereof, to furnish to you and, upon request, to each of the other several Underwriters hereunder, (i) copies of all reports or other communications (financial or other) furnished to stockholdersshareholders, and to deliver to you (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or Commission, any national securities exchange on which any class of securities of or the Company is listed; NASD, and (iiiii) such additional publicly available information concerning the business and financial condition of the Company Company, if any, as you may from time to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;; and
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement Form SR in conformity with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on requirements of the date of this Agreement, Act and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks Rules and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredRegulations.
Appears in 1 contract
Samples: Underwriting Agreement (Birner Dental Management Services Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such the Prospectus pursuant to Rule 424(b) under the Securities Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Securities Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Statement, the Time of Delivery that Sale Prospectus or the Prospectus which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Time of Sale Prospectus or the Prospectus or any amended Time of Sale Prospectus or Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary the Time of Sale Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Time of Sale Prospectus or the 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 the Time of Sale Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such order;its withdrawal.
(b) To furnish to the Representative a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representative reasonably objects.
(c) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) 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 which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable 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 (whose names and addresses the Representative will furnish to the Company) to which Securities may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(f) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;.
(cg) Prior to 10:00 a.m.As soon as practicable, Richmond, Virginia time, on but not later than the business day next succeeding the date of this Agreement and from time to timeAvailability Date (as defined below), to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 twelve (12) months beginning after the effective date of the Registration Statement which will satisfy the provisions of Section 11(a) of the Securities Act (for the purpose of this subsection 5(g) only, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes the effective date of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunderthat, any securities of if such fourth fiscal quarter is the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients last quarter of the Company’s securities agree in writing prior fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter).
(h) To furnish to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder holders of the Lock-Up Period Securities as if such recipients were soon as practicable after the Companyend of the each fiscal year an annual report (including a balance sheet and statements of operations, changes in stockholders’ equity and cash flows of the Company and its subsidiary certified by independent public accountants) and, make available to the holders of the Securities 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), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days consolidated summary financial information of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then and its subsidiary for such quarter in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;reasonable detail.
(fi) During a period of three five (5) 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 stockholdersshareholders, and to 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 listedlisted or the Nasdaq Stock Market, Inc.; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;, except to the extent such information is publicly available through the Commission’s website or disseminated through a national news service.
(gj) For a period of 120 days from the effective date of the Registration Statement, not to offer, sell, contract to sell or otherwise dispose of any securities of the Company which are substantially similar to the Securities (other than the Securities or pursuant to (i) employee stock option or stockholder dividend reinvestment plans, or (ii) merger and acquisition transactions, (iii) currently outstanding warrants or options) without your prior written consent.
(k) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (First Capital Bancorp, Inc.)
Agreements of the Company. The Company agrees with each of the Underwritersseveral Underwriters as follows:
(a) To prepare the Prospectus in relation to the Securities in a form reasonably approved by you the Representatives and to file such the Prospectus Supplement as required pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, the Prospectus relating to the applicable Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus after the date of this Agreement and prior to any Time of Delivery that the Closing Date for such Securities which shall be disapproved by you the Representatives for such Securities promptly after reasonable notice thereof; to advise youthe Representatives promptly of any such amendment or supplement after such Closing Date and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission 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 such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereofCommission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus prospectus or prospectusregistration statement relating to the Securities, of the suspension of the qualification of the Shares such Securities for offering or sale in any jurisdiction, of the initiation or threatening by the Commission of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or prospectus relating to the Securities or suspending any such qualification, promptly to use promptly its best reasonable efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time The Company will furnish to time each of you, and to take counsel to the Underwriters such action number of copies as you may reasonably request to qualify the Shares 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 SharesRegistration Statement as originally filed with the Commission and of each amendment and supplement thereto, providedincluding consents, 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 jurisdictionfinancial statements and all exhibits thereto;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date execution and delivery of this Agreement and from time Agreement, the Company has delivered to timeyou, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and without charge, in such quantities as you may have requested, copies of each Preliminary Prospectus. The Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(d) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time reasonably request during for such period following as in the date hereof that opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with offers sales by any Underwriter or sales dealer, the Company will expeditiously deliver to each Underwriter and each dealer, without charge, as many copies of Sharesthe Prospectus (and of any amendment or supplement thereto) as you may request. The Company consents to the use of the Prospectus 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, and, if both in connection with the delivery offering and sale of a prospectus the Securities 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 this such period and if at such of time any event shall have occurred as a result occur that in the judgment of which the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for any other reason it shall be is necessary during such period to supplement or amend or supplement 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 Exchange ActCompany will forthwith prepare and, subject to notify the provisions of paragraph (c) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and dealers a reasonable number of copies thereof. In the event that the Company and you, as Representatives of the 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.
(e) The Company will cooperate with you and upon your request to file with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies jurisdictions as you may from time designate and will file such consents to time reasonably request service of an amended Prospectus process or a supplement other documents necessary or appropriate in order to the Prospectus which will correct such statement or omission or effect such compliance;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.
(df) To The Company will make generally available to its stockholders and to deliver to you as soon as practicablesecurity holders a consolidated earnings statement, but in any event which need not later than eighteen months be audited, covering a twelve-month period commencing after the effective date of the Registration StatementStatement and ending not later than 15 months thereafter, an as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of the Company and the Subsidiaries (which need not be audited) complying with 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 rules and regulations of the Registration Statement;Commission thereunder (including, at the option of the Company, Rule 158).
(eg) During the Lock-Up Periodperiod of five years hereafter, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to deliver to you (i) as soon as they are available, copies a copy of any reports and financial statements furnished each report of the Company mailed to stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; Commission, and (ii) from time to time such additional other information concerning the business and financial condition of the Company as you may from time to time reasonably request;.
(gh) To If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than pursuant to paragraph (c) of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith.
(i) The Company will apply the net proceeds from the sale of the Shares for Securities substantially in accordance with the purposes description set forth in the Prospectus;.
(hj) To Except as provided in this Agreement, the Company will not, directly or indirectly, (1) offer, pledge, sell, contract to sell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, (2) sell or grant any option or contract to purchase, or purchase any option or contract to sell, Common Stock or any securities convertible into or exchangeable or exercisable for or repayable with Common Stock, (3) grant any option, right or warrant for the sale of Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, (4) lend or otherwise dispose of or transfer Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, (5) request or demand that the Company file any registration statement related to the Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock, or (6) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock or any securities convertible into or exercisable or exchangeable or exercisable for or repayable with Common Stock (whether such swap, agreement or transaction is to be settled by delivery of shares or other securities, in cash or otherwise), for a period of 90 days after the date of the Prospectus Supplement, without first obtaining written consent of the Representatives, other than any shares or options issued pursuant to Company employee and director plans and any Company dividend, and interest reinvestment and stock purchase plans.
(k) Except as stated in this Agreement and in the Preliminary Prospectus and Prospectus, the Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the Securities.
(l) The Company will cause the shares of Common Stock which it agrees to sell under this Agreement to be listed on the New York Stock Exchange on or before the Closing Date and will use its best efforts to list, subject to notice of issuance, the Shares maintain such listings on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredexchange.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such order;its withdrawal.
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 Shares, provided, 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;.
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;.
(d) To make generally available to its stockholders shareholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statementyou, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Shares or pursuant to the Company’s benefit employee stock option plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, Agreement or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect pursuant to such merger or acquisition, so long as the recipients of the Company’s securities bona fide gifts to persons who agree in writing prior to with the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, donor to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Companyrestriction), without the your prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;consent.
(f) During a period of three 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 stockholdersshareholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission Commission, the Nasdaq Stock Market 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 Shares for the purposes set forth in the Prospectus;Prospectus and report the use of such proceeds in accordance with Rule 463 under the Act.
(h) To The Company will comply with all of the provisions of any undertakings contained in the Registration Statement. The Company will, from time to time, after the effective date of the Registration Statement file with the Commission such reports as are required by the Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, and shall also file with state securities commissions in states where the Shares have been sold by you (as you shall have advised us in writing) any such reports as are required to be filed by the securities acts and the regulations of those states.
(i) If at any time during the 25 day period after the Registration Statement is declared effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in your opinion, the market price for the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising it to do so, prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event.
(j) Neither the Company nor any of its officers, directors or affiliates will take, directly or indirectly, any action designed to cause or result in, or which might constitute or be expected to constitute, stabilization or manipulation of the price of the Common Stock.
(k) The Company will cause the Shares to be listed on the Nasdaq Stock Market's National Market (or such other trading market as shall be approved by you) at each Delivery Date and will use its best efforts to listcause the Shares to be so listed for at least three years from the date hereof.
(l) The Company will not invest or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company to register as an investment company under the 1940 Act.
(m) The Company will maintain a transfer agent and, subject if necessary under the laws of the State of Georgia, a registrar for the Common Stock.
(n) Prior to notice of issuancethe Closing Date (and, if applicable, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(bOption Closing Date), the Company shall will furnish to you, as soon as they have been prepared, copies of any unaudited interim consolidated financial statements of the Company and its Subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus.
(o) The Company will file a Rule 462(b) Registration Statement registration statement on Form 8-A with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee providing for the Rule 462(b) Registration Statement or give irrevocable instructions for registration of the payment of such fee pursuant to Rule 111(b) Shares under the Exchange Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter as follows:
(a) To The Company will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in a form reasonably approved the Prospectus, the price at which the Notes are to be purchased by you the Underwriter, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and to reallowances, if any, and such other information as the Underwriter and the Company deem appropriate in connection with the offering of the Notes, and the Company will timely file such Prospectus supplement to the prospectus with the SEC pursuant to to, and within the time frame provided by, Rule 424(b) under the Act Act, but the Company will not later than file any amendments to the Commission’s close of business on Registration Statement as in effect with respect to the second business day following Notes or any amendments or supplements to the execution and delivery of this AgreementProspectus, or, if applicable, such earlier time as may be or any Free Writing Prospectus to the extent required by Rule 430A(a)(3433(d) under the Act; , unless it shall first have delivered copies of such amendments, supplements or Free Writing Prospectus to make no the Underwriter, with reasonable opportunity to comment on such proposed amendment or supplement to supplement, or if the Registration Statement or Prospectus prior to any Time of Delivery that Underwriter shall be disapproved by you have reasonably objected thereto promptly after reasonable notice receipt thereof; to the Company will immediately advise you, promptly after it receives the Underwriter or the Underwriter’s counsel (i) when notice thereof, of is received from the time when SEC that any post-effective amendment to the Registration Statement has been filed become or becomes will become effective and (ii) of any order or any supplement communication suspending or preventing, or threatening to suspend or prevent, the Prospectus or any amended Prospectus has been filed offer and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order Notes or of any proceedings or examinations that may lead to such an order preventing or suspending the use of any Preliminary Prospectus communication, whether by or prospectus, of the suspension of SEC or any authority administering any state securities or Blue Sky law, as soon as the qualification of the Shares for offering or sale in any jurisdictionCompany is advised thereof, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to 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 withdrawal 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 the Underwriter to the Depositor and the Company in accordance with Section 4(d)(ii) of this Agreement (each such order;Free Writing Prospectus, an “Assumed Free Writing Prospectus”).
(b) Promptly from If, at any time to time to take such action as you may reasonably request to qualify following the Shares for offering and sale under the securities laws issuance of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation an “issuer free writing prospectus” or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and when the Prospectus at such locations and in such quantities as you may from time relating to time reasonably request during such period following the date hereof that a prospectus Notes is required to be delivered in connection with offers or sales of Sharesunder the Act, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred or occurs as a result of which such “issuer free writing prospectus” would conflict with the information in the Registration Statement or the Prospectus, or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary during such period time to amend or supplement the Prospectus in order to comply with the Act or the Exchange ActRules and Regulations, to the Company promptly will notify you the Underwriter of such event and upon your request to file such document and to will promptly prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of file with the SEC, at its own expense, an amended Prospectus “issuer free writing prospectus” or a an amendment or supplement to the such Prospectus which 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 8 hereof.
(c) The Company will immediately inform the Underwriter (i) of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the Underwriter, 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 documents relating to the Notes, in each case in such quantities as the Underwriter may reasonably request.
(e) The Company will cooperate with the Underwriter in listing the Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriter and with its 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 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 Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of documents or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the 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 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, the Company agrees to reimburse the Underwriter 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.
(k) The net proceeds from the sale of the 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 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 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 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 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, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, securityholders an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with 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 later of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to furnish the Registration Statement to you copies become effective prior to the date of all reports this Agreement and (iii) the date of the Company’s most recent Annual Report or other communications (financial or other) furnished to stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or Form 10-K 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 prior to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and which will satisfy the Company shall at the time provisions of filing either pay to the Commission the filing fee for the Rule 462(bSection 11(a) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (SLC Student Loan Trust 2009-1)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its reasonable best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, to make generally available to its stockholders shareholders (within the meaning of Rule 158 under the Act) and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statementyou, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to without the Sharesprior written consent of Xxxxxx Xxxxxxx & Associates, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities Inc. (other than (i) pursuant 1,000,000 shares of Common Stock to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding be used as of, the date of this Agreement, or (ii) consideration in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as practices if the recipients of the Company’s securities such shares agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for until 180 days after the remainder of date hereof, and (ii) the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, Securities to be sold by the Company releases earnings results hereunder or material news pursuant to employee stock option plans or a material event relating pursuant to the Company occurs options, warrants or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning rights outstanding on the date of release of this Agreement or granted hereafter pursuant to the earnings results Xxxxxx Dental Management Services, Inc. 1995 Employee Stock Option Plan or the occurrence of Xxxxxx Dental Management Services, Inc. 1995 Stock Option Plan for Managed Dental Centers so long as such options are not exercisable within 180 days after the material news or material event, as applicable, unless BBTCM waives, in writing, such extensiondate hereof);
(f) During a period of three five (5) years from after the effective date of the Registration Statementhereof, to furnish to you and, upon request, to each of the other several Underwriters hereunder, (i) copies of all reports or other communications (financial or other) furnished to stockholdersshareholders, and to deliver to you (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or Commission, any national securities exchange on which any class of securities of or the Company is listed; NASD, and (iiiii) such additional publicly available information concerning the business and financial condition of the Company Company, if any, as you may from time to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;; and
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement Form SR in conformity with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on requirements of the date of this Agreement, Act and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks Rules and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredRegulations.
Appears in 1 contract
Samples: Underwriting Agreement (Birner Dental Management Services Inc)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters as follows:
(a) To The Company will prepare a supplement to the Prospectus setting forth the amount of the Notes covered thereby and the terms thereof not otherwise specified in a form reasonably approved the Prospectus, the price at which the Notes are to be purchased by you the Underwriters, either the initial public offering price or the method by which the price at which the Notes are to be sold will be determined, the selling concessions and to reallowances, if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Notes , and the Company will timely file such Prospectus supplement to the prospectus with the SEC pursuant to Rule 424(b) under the Act Act, but the Company will not later than file any amendments to the Commission’s close of business on Registration Statement as in effect with respect to the second business day following Notes or any amendments or supplements to the execution and delivery of this AgreementProspectus, or, if applicable, such earlier time as may be or any Free Writing Prospectus to the extent required by Rule 430A(a)(3433(d) under the Act; , unless it shall first have delivered copies of such amendments, supplements or Free Writing Prospectus to make no the Underwriters, with reasonable opportunity to comment on such proposed amendment or supplement to supplement, or if the Registration Statement or Prospectus prior to any Time of Delivery that Underwriters shall be disapproved by you have reasonably objected thereto promptly after reasonable notice receipt thereof; to the Company will immediately advise you, promptly after it receives the Underwriters or the Underwriters' counsel (i) when notice thereof, of is received from the time when SEC that any post-effective amendment to the Registration Statement has been filed become or becomes will become effective and (ii) of any order or any supplement communication suspending or preventing, or threatening to suspend or prevent, the Prospectus or any amended Prospectus has been filed offer and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order Notes or of any proceedings or examinations that may lead to such an order preventing or suspending the use of any Preliminary Prospectus communication, whether by or prospectus, of the suspension of SEC or any authority administering any state securities or Blue Sky law, as soon as the qualification of the Shares for offering or sale in any jurisdictionCompany is advised thereof, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to 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 withdrawal 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 order;Free Writing Prospectus, an "Assumed Free Writing Prospectus").
(b) Promptly from If, at any time to time to take such action as you may reasonably request to qualify following the Shares for offering and sale under the securities laws issuance of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation an "issuer free writing prospectus" or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and when the Prospectus at such locations and in such quantities as you may from time relating to time reasonably request during such period following the date hereof that a prospectus Notes is required to be delivered in connection with offers or sales of Sharesunder the Act, and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred or occurs as a result of which such "issuer free writing prospectus" would conflict with the information in the Registration Statement or the Prospectus, or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for it is necessary at any other reason it shall be necessary during such period time to amend or supplement the Prospectus in order to comply with the Act or the Exchange ActRules and Regulations, to the Company promptly will notify you the Representative of such event and upon your request to file such document and to will promptly prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of file with the SEC, at its own expense, an amended Prospectus "issuer free writing prospectus" or a an amendment or supplement to the such Prospectus which 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 or any state securities authority concerning the offering or sale of the Notes and (ii) of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Notes.
(d) The Company will furnish to the 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 documents relating to the Notes, in each case in such quantities as the Underwriters may reasonably request.
(e) The Company will cooperate with the Underwriters in listing the Class A Notes on the Irish Stock Exchange.
(f) The Company will cooperate with the Underwriters 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 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 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 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 Notes by the rating agency or agencies that initially rate the Notes is conditional upon the furnishing of documents or the taking of any other reasonable actions by the Company, the Company shall cause to be furnished such documents and such other actions to be taken.
(i) So long as any of the Notes are outstanding, the Company will furnish to the Underwriters (i) as soon as available, a copy of each document relating to the Notes required to be filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any order of the SEC thereunder, and (ii) such other information concerning the Company as the Underwriters may request from time to time.
(j) If this Agreement shall terminate or shall be terminated after execution and delivery pursuant to any provisions hereof (otherwise than by notice given by the Representative terminating this Agreement pursuant to Section 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 Notes hereunder will be applied substantially 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 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 Indenture Trustee or the Company pursuant to the Servicing Agreement as soon as such statements and reports are furnished to the Indenture Trustee or the Company.
(n) On or before the Closing Date, the Company shall mark its accounting and other records, if any, relating to the Txxxx Student Loans and shall cause the Servicer, SLC and SLC Receivables to mark their respective computer records relating to the Trust Stuxxxx 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, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) under the 1933 Act, copies of an amended Prospectus containing all information so omitted.
(q) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, securityholders an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with 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 later of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to furnish the Registration Statement to you copies become effective prior to the date of all reports this Agreement and (iii) the date of the Company's most recent Annual Report or other communications (financial or other) furnished to stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or Form 10-K 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 prior to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and which will satisfy the Company shall at the time provisions of filing either pay to the Commission the filing fee for the Rule 462(bSection 11(a) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (SLC Student Loan Trust 2006-2)
Agreements of the Company. The In connection with the sale of the Notes to the Purchasers and each Exempt Resale of the Notes, the Company agrees with each of DLJ and the UnderwritersPurchasers as follows:
(a) a. To prepare advise DLJ and the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orPurchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Purchas ers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Senior Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of any request by change in the Commission for Company's condition (financial or otherwise), business, proposals, properties, net worth or results of operations or the amending happening of any event that makes any statement of a material fact made in the Initial Offering Memorandum, any Preliminary Offering Memorandum or supplementing any Offering Memorandum untrue or that requires the making of any additions to or changes in the Initial Offering Memorandum, any Preliminary Offering Memorandum or any Offering Memorandum in order to make the statements therein, in light of the Registration Statement or Prospectus or for additional information; andcircumstances under which they are made, in the event of 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 Senior Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or other regulatory authority shall issue an order preventing or suspending the use qualification or exemption of any Preliminary Prospectus Senior Notes under any state securities or prospectus or suspending any such qualificationBlue Sky laws, promptly to the Company shall use its best efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering b. To prepare each Preliminary Offering Memorandum 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 Shares, provided, that each Offering Memorandum on a timely basis in connection therewith with the Company shall not be required Exempt Resales, if requested to qualify do so by DLJ.
c. To furnish DLJ and the Purchasers, without charge, with as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic many copies of the Registration Statement Initial Offering Memorandum, each Preliminary Offering Memorandum and each Offering Memorandum, and any amendments or supplements thereto, as DLJ and the Prospectus at such locations Purchasers may reasonably request. The Company consents to the use of the Initial Offering Memorandum, each Preliminary Offering Memorandum and in such quantities as you may from time to time reasonably request during such period following each Offering Memorandum, and any amendments and supplements thereto, by DLJ and the date hereof that a prospectus is required to be delivered Purchasers in connection with offers or sales of Sharesthe Senior Notes and agrees to cooperate with DLJ and the Purchasers in good faith in the marketing and sale of such Senior Notes, andincluding, if without limitation, participation on a customary basis in road show presentations, not to exceed ten business days, reasonably advisable in the delivery opinion of DLJ in connection with such marketing and sale.
d. Not to amend or supplement the Initial Offering Memorandum, any applicable Preliminary Offering Memorandum or any applicable Offering Memorandum prior to the final closing date of the applicable Exempt Resales as specified by DLJ (each date an Exempt Resale takes place, an "Exempt Resales Closing Date"), unless DLJ shall previously have been advised thereof and shall not have objected thereto after being furnished a prospectus is required during this period and if at such time copy thereof. The Company shall promptly prepare, upon your request, any amendment or supplement to the Initial Offering Memorandum, any Preliminary Offering Memorandum or any Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
e. If, after the date hereof, any event shall have occurred occur as a result of which which, in the Prospectus reasonable judgment of the Company or in the reasonable judgment of DLJ or its counsel, it becomes necessary to amend or supplement, any Preliminary Offering Memorandum or any Offering Memorandum, as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary applicable, in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus when, any Preliminary Offering Memorandum or any Offering Memorandum, as applicable, is delivereddelivered to an Eligible Purchaser, not misleading, or, or if for any other reason it shall be is necessary during such period to amend or supplement the Prospectus in order supplement, any Preliminary Offering Memorandum or any Offering Memorandum, as applicable, to comply with applicable law, forthwith to prepare an appropriate amendment or supplement to, any Preliminary Offering Memorandum or any Offering Memorandum so that the Act statements therein as so amended or supplemented will not, in the Exchange Actlight of the circumstances when it is so delivered, to notify be misleading, or so that, any Preliminary Offering Memorandum and any Offering Memorandum, as applicable, will comply with applicable law.
f. To cooperate with you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) counsel in connection with the merger with or acquisition of another corporation or entity or the acquisition qualification of the assets Senior Notes under the securities or properties Blue Sky laws of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 jurisdictions as you may from time request and to time reasonably request;
(g) To apply continue such qualification in effect for as long as may be necessary to complete the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the SharesExempt Resales; provided, however, that the foregoing license Company shall not be used solely required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or taxation, other than as to matters and transactions relating to the Exempt Resales, in any jurisdiction where it is not now so subject.
g. Whether or not the transactions contemplated by this Agreement are consum mated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the printing, processing, filing, distribution and delivery of the Initial Offering Memorandum, each Preliminary Offering Memorandum and each Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto, (ii) the printing, processing, execution, distribution and delivery of this Agreement, the other Transaction Documents, any memoranda describing state securities or Blue Sky laws and all other agreements, memoranda, correspondence and other documents printed, distributed and delivered in connection herewith and with the offer or sale of the Senior Notes, (iii) the issuance and delivery by the Company of the Senior Notes, (iv) the qualification of the Senior Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the fees and disbursements of your counsel relating to such registration or qualification and memoranda relating thereto and any filing fees in connection therewith), (v) furnishing such copies of each Preliminary Offering Memorandum and each Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the purpose described aboveSenior Notes (including, is granted without any fee limitation, printing and may not be assigned or transferredengraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, all expenses and listing fees in connection with the application for quotation of the Senior Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (ix) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Senior Notes by The Depository Trust Company ("DTC") for "book-entry" transfer, (x) the performance by the Company of its other obligations under this Agreement and the other Transaction Documents and (xi) the rating of the Senior Notes by investment rating agencies.
Appears in 1 contract
Samples: Note Purchase Agreement (United International Holdings Inc)
Agreements of the Company. The Company agrees with each of the Underwritersyou as follows:
(a) To prepare the Prospectus in a form reasonably approved by advise you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orpromptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent Purchasers, to the date of the Prospectus and for so long as the delivery of a prospectus is required confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Series A Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purposestate securities commission or other regulatory authority, or and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of that makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Offering Memorandum untrue or omit that requires the making of any additions to state any material fact necessary or changes in the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare 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 of the Series A Notes under any state securities or Blue Sky laws, orand if at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Series A Notes under any state securities or Blue Sky laws, if for the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any other reason it shall be necessary during such period amendments or supplements thereto, as you may reasonably request. The Company consents to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto, by you in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum prior to the Closing Date unless you shall previously have been advised thereof and shall have no reasonable objection thereto after being furnished a copy thereof. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Preliminary Offering Memorandum or omission the Offering Memorandum that may be reasonably necessary or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resales, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of your counsel, it becomes necessary to amend or supplement the Offering Memorandum in order to made the statements therein, in the light of the Act and Rule 158 under circumstances when the Act covering Offering Memorandum is delivered to an Eligible Purchaser which is a period of at least 12 months beginning after prospective purchaser, not misleading, or if it is necessary to amend or supplement the effective date Offering Memorandum to comply with applicable law, forthwith to prepare an appropriate amendment or supplement to the Offering Memorandum so that statements therein as so amended or supplemented will not, in the light of the Registration Statement;circumstances when it is so delivered, be misleading, or so that the Offering Memorandum will comply with applicable law.
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) To cooperate with you and your counsel in connection with the merger with or acquisition of another corporation or entity or the acquisition qualification of the assets Series A Notes under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as you may request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the SharesExempt Resales; provided, however, that the foregoing license Company shall not be used solely required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or taxation, other than as to matters and transactions relating to the Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing), (ii) the preparation (including, without limitation, word processing and duplication costs) and delivery of this Agreement and the other Operative Documents and all other agreements, memoranda, correspondence and other documents (but not, however, legal fees and expenses of your counsel incurred in connection with any of the foregoing) and all preliminary and final Blue Sky memoranda prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance and delivery by the Company of the Notes, (iv) the qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of your counsel relating to such registration or qualification), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the purpose described aboveNotes (including, is granted without any fee limitation, printing and may not be assigned or transferredengraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, (viii) 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"), (ix) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for "book-entry" transfer and (x) the performance by the Company of its other obligations under this Agreement and the other Operative Documents.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersInitial Purchasers as follows:
(a) a. To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Senior Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of any request by change in the Commission for Company's condition (financial or otherwise), business, proposals, properties, net worth or results of operations or the amending happening of any event that makes any statement of a material fact made in the Preliminary Offering Memorandum or supplementing the Offering Memorandum untrue or that requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in light of the Registration Statement or Prospectus or for additional information; andcircumstances under which they are made, in the event of 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 Senior Notes under any state securities or Blue Sky laws and, if at any time any state securities commission or other regulatory authority shall issue an order preventing or suspending the use qualification or exemption of any Preliminary Prospectus Senior Notes under any state securities or prospectus or suspending any such qualificationBlue Sky laws, promptly to the Company shall use its best efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to b. To furnish the Underwriters Initial Purchasers, without charge, with written and electronic as many copies of the Registration Statement Preliminary Offering Memorandum and the Prospectus at such locations Offering Memorandum, and in such quantities any amendments or supple ments thereto, as you the Initial Purchasers may from time reasonably request. The Company consents to time reasonably request during such period following the date hereof that a prospectus is required to be delivered use of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchaser in connection with offers or sales of Sharesthe Senior Notes.
c. Not to amend or supplement the Offering Memorandum prior to the Closing Date, andunless you shall previously have been advised thereof and shall not have objected thereto after being furnished a copy thereof. The Company shall promptly prepare, if upon your request, any amendment or supplement to the delivery of a prospectus is required during this period and if at such time Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
d. If, after the date hereof, any event shall have occurred occur as a result of which which, in the Prospectus as then amended reasonable judgment of the Company or supplemented would include an untrue statement in the reasonable judgment of a material fact the Initial Purchasers or omit their counsel, it becomes necessary to state any material fact necessary amend or supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus the Offering Memorandum is delivereddelivered to an Eligible Purchaser, not misleading, or, or if for any other reason it shall be is necessary during such period to amend or supplement the Prospectus in order Offering Memorandum to comply with applicable law, forthwith to prepare an appropriate amendment or supplement to the Act Offering Memorandum so that the statements therein as so amended or supplemented will not, in the Exchange Actlight of the circumstances when it is so delivered, to notify be misleading, or so that the Offering Memorandum will comply with applicable law.
e. To cooperate with you and upon your request to file counsel in connection with the qualification of the Securities under the securities or Blue Sky laws of such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies jurisdictions as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver continue such qualification in effect for as long as may be necessary to you as soon as practicable, but in any event not later than eighteen months after complete the effective date distribution of the Registration StatementExempt Resales; PROVIDED, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with 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) During the Lock-Up PeriodHOWEVER, that the Company shall not, directly not be required in connection therewith to register or indirectly, offer, sell, offer qualify as a foreign corporation where it is not now so qualified or to sell, contract to sell, pledge, grant take any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company action that are substantially similar would subject it to the Sharesservice of process in suits or taxation, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than as to matters and transactions relating to the Exempt Resales, in any jurisdiction where it is not now so subject.
f. Whether or not the transactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to and in connection with: (i) pursuant to the Company’s benefit plans existing onprinting, or upon processing, filing, distribution and delivery of the conversion or exchange of convertible or exchangeable securities outstanding as ofOffering Memorandum (including, without limitation, financial statements and exhibits) and all amendments and supplements thereto, (ii) the date printing, processing, execution, distribution and delivery of this Agreement, the other Transaction Documents, any memoranda describing state securities or Blue Sky laws and all other agreements, memoranda, correspondence and other documents printed, distributed and delivered in connection herewith and with the offer or sale of the Senior Notes, (iiiii) the issuance and delivery by the Company of the Senior Notes, (iv) the qualification of the Senior Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the fees and disbursements of your counsel relating to such registration or qualification and memoranda relating thereto and any filing fees in connection therewith), (v) furnishing such copies of the Offering Memorandum, and all amend ments and supplements thereto, as may be reasonably requested for use in connection with Exempt Resa1es, (vi) the preparation of certificates for the Senior Notes (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, all expenses and listing fees in connection with the merger with or acquisition of another corporation or entity or the acquisition application for quotation of the assets or properties Senior Notes in the National Association of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisitionSecurities Dealers, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(eInc. ("NASD") for the remainder of the Lock-Up Period as if such recipients were the CompanyAutomated Quotation System - PORTAL ("PORTAL"), without the prior written consent (ix) all fees and expenses (including fees and expenses of BBTCM; provided, however, that if (1counsel) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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; in connection with approval of the Senior Notes by DTC for "book-entry" transfer, (x) the performance by the Company of its other obligations under this Agreement and the other Transaction Documents and (iixi) such additional information concerning the business and financial condition rating of the Company as you may from time to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) Senior Notes by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredinvestment rating agencies.
Appears in 1 contract
Samples: Note Purchase Agreement (United International Holdings Inc)
Agreements of the Company. The Company covenants and agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery date of this Agreement, or, if applicable, such earlier time 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 any Time of Delivery that which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment to the Registration Statement thereto, 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 file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectusProspectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderorder at the earliest possible time;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities 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 such reasonable time as may be necessary to complete the distribution of the Shares; provided, providedhowever, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Sharesrequest, and, if the delivery of a prospectus Prospectus is required during this period at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event events 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.will
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees -------------------------- with each of the UnderwritersInitial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Company Shares for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; andevent that, in the event reasonable opinion 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, promptly either counsel to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required or counsel to qualify as a foreign corporation or to file a general consent to service of process in the Initial Purchasers, makes any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Series D Preferred Stock (and the related Depositary Shares) under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any of the Company Shares, under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. 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 Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to the Initial Purchasers' request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Preliminary Offering Memorandum or omission the Offering Memorandum that may be necessary or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resale, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement judgment of the Company and or in the Subsidiaries (which need not be audited) complying with Section 11(a) reasonable opinion of either counsel to the Company or counsel to the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements therein, in the light of the Act circumstances when such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchasers and Rule 158 under (ii) forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the Act covering a period of at least 12 months beginning after statements therein as so amended or supplemented will not, in the effective date light of the Registration Statement;circumstances when it is so delivered, be misleading, or so that such Offering Memorandum will comply with applicable law.
(e) During To cooperate with the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Initial Purchasers and counsel to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchasers in connection with the merger with qualification or acquisition of another corporation or entity or the acquisition registration of the assets Company Shares under the securities or properties Blue Sky laws of any such corporation or entity jurisdictions as the Initial Purchasers may reasonably request and the related entry into a merger or acquisition agreement with respect to continue such merger or acquisition, qualification in effect so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) required for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMExempt Resales; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results shall not be required in connection therewith to register or material news qualify as a foreign corporation where it is not now so qualified or a material event to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up PeriodPreliminary Offering Memorandum, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results Offering Memorandum or the occurrence of the material news or material event, as applicable, unless BBTCM waivesExempt Resales, in writing, such extension;any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated hereby are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all preliminary and final Blue Sky memoranda prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance, transfer and delivery by the Company of the Securities to the Initial Purchasers, (iv) the qualification or registration of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of counsel to the Initial Purchasers relating thereto), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the Securities (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, (viii) all expenses and listing fees in connection with the application for quotation of the Company Shares in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ---- ("PORTAL"), (ix) all fees and expenses (including fees and expenses of counsel ------ to the Company) of the Company in connection with the approval of the Securities by DTC for "book-entry" transfer, (x) rating the Securities by rating agencies, (xi) the reasonable fees and expenses of the Transfer Agent and its counsel in connection with the Certificate of Designation, (xii) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (xiii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Securities (other than out-of-pocket expenses incurred by the Initial Purchasers for travel, meals and lodgings).
(g) To use the proceeds from the sale of the Company Shares in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) 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 on its part to the delivery of the Company Shares.
(i) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Company Shares, in a manner that would require the registration under the Act of the sale to the Initial Purchasers or Eligible Purchasers of the Company Shares, or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(j) For so long as any of the Securities 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 the Company Shares, in connection with any sale thereof and any prospective purchaser of such Company Shares from such holder, the information required by Rule 144A(d)(4) under the Act.
(k) To comply with all of its agreements set forth in the Registration Rights Agreement and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Company Shares, by DTC for "book-entry" transfer.
(l) To use its best efforts to effect the inclusion of the Company Shares, in PORTAL and to obtain approval of the Company Shares, by DTC for "book-entry" transfer.
(m) During a period of three five years from following the effective date Closing Date, to deliver without charge to each of the Registration StatementInitial Purchasers, to furnish to you as they may reasonably request, promptly upon their becoming available, copies of (i) all reports or other communications publicly available information that the Company shall mail or otherwise make available to its stockholders and (financial or otherii) furnished to stockholdersall reports, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to and proxy or information statements filed by the Company with the Commission or any national securities exchange on which and such other publicly available information concerning the Company or its Subsidiaries, including without limitation, press releases.
(n) Prior to the Closing Date, to furnish to each of the Initial Purchasers, as soon as they have been publicly disclosed by the Company, a copy of any class of securities consolidated financial statements and any unaudited interim financial statements of the Company is listed; and for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum.
(iio) such additional information concerning Neither the business and financial condition Company nor any of its Subsidiaries will take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Company Shares. Except as you may from time to time reasonably request;
(g) To apply permitted by the net proceeds from Act, the Company will not distribute any preliminary offering memorandum, offering memorandum or other offering material in connection with the offering and sale of the Shares for Company Shares.
(p) To comply with the purposes set forth agreements in the Prospectus;
(h) To use its best efforts to list, subject to notice Certificate of issuanceDesignation, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b)Indenture, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, Rights Agreement and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredother Operative Document.
Appears in 1 contract
Samples: Purchase Agreement (Intermedia Communications of Florida Inc)
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that as a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, but not later than the Availability Date (as defined below), to make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 months beginning after the effective date of the Registration Statement which will satisfy the provisions of Section 11(a) of the Act (for the purpose of this subsection 5(d) only, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes the effective date of the Registration Statement, 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);
(e) During To furnish to the Lock-Up Periodholders of the Securities as soon as practicable after the end of the each fiscal year an annual report (including a balance sheet and statements of operations, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities changes in stockholders’ equity and cash flows of the Company that are substantially similar and its consolidated subsidiaries certified by independent public accountants) and, make available to the Sharesholders of the Securities, including but not limited to any shares as soon as practicable after the end of Common Stock or any other capital stock 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 or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any and its consolidated subsidiaries for such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) quarter in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionreasonable detail;
(f) During a period of three 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 stockholdersshareholders, and to 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 listedlisted or the Nasdaq Stock Market, Inc.; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;
(g) For a period of 90 days from the effective date of the Registration Statement, not to offer, sell, contract to sell or otherwise dispose of any securities of the Company which are substantially similar to the Securities (other than the Securities or pursuant to (i) the Company’s stock option plan, (ii) merger and acquisition transactions, or (iii) currently outstanding warrants or options) without your prior written consent; and
(h) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company hereby agrees with each of the UnderwritersInitial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Series A Notes for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, of or the initiation or threatening of any proceeding by any state securities commission or any other federal or state regulatory authority for any such purpose, or purpose and (ii) of the happening of any request by event during the Commission for the amending or supplementing period referred to in Section 5(c) below that makes any statement of the Registration Statement or Prospectus or for additional information; and, a material fact made in the event of 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 all commercially reasonable 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 preventing or suspending the use qualification or exemption of any Preliminary Prospectus Series A Notes under any state securities or prospectus or suspending any such qualificationBlue Sky laws, promptly to the Company shall use its best all commercially reasonable efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from time To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to time to take such action the Company as you many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to qualify the Shares for offering Initial Purchasers' compliance with their representations and sale under warranties and agreements set forth in Section 7 hereof, the securities laws of such jurisdictions as you may request and Company consents 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 use of the SharesPreliminary Offering Memorandum and the Offering Memorandum, providedand any amendments and supplements thereto required pursuant hereto, that by the Initial Purchasers 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;with Exempt Resales.
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during During such period following as in the date hereof that a prospectus opinion of counsel for the Initial Purchasers an Offering Memorandum is required by law to be delivered in connection with offers Exempt Resales by the Initial Purchasers and in connection with market-making activities of the Initial Purchasers for so long as any Series A Notes are outstanding, (i) not to make any amendment or sales supplement to the Offering Memorandum of Shareswhich the Initial Purchasers shall not previously have been advised or to which the Initial Purchasers shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable request, andany amendment or supplement to the Offering Memorandum which may be necessary or advisable in connection with such Exempt Resales or such market-making activities.
(d) If, if during the delivery of a prospectus is required during this period and if at such time referred to in Section 5(c) above, any event shall have occurred occur or condition shall exist as a result of which which, in the Prospectus as then amended opinion of counsel to the Initial Purchasers, it becomes necessary to amend or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary supplement the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus Offering Memorandum is delivereddelivered to an Eligible Purchaser, not misleading, oror if, if for any other reason in the opinion of counsel to the Initial Purchasers, it shall be is necessary during such period to amend or supplement the Prospectus in order Offering Memorandum to comply with any applicable law, forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the Act statements therein, as so amended or supplemented, will not, in the Exchange Actlight of the circumstances when it is so delivered, to notify you and upon your request to file be misleading, or so that such document Offering Memorandum will comply with applicable law, and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct Initial Purchasers and such statement or omission or effect other persons as the Initial Purchasers may designate such compliance;
(d) To make generally available to its stockholders and to deliver to you number of copies thereof as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 months beginning after the effective date of the Registration Statement;Initial Purchasers may reasonably request.
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar Prior to the Shares, including but not limited to any shares sale of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) all Series A Notes pursuant to Exempt Resales as contemplated hereby, to cooperate with the Company’s benefit plans existing on, or upon Initial Purchasers and counsel to the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) Initial Purchasers in connection with the merger with registration or acquisition of another corporation or entity or the acquisition qualification of the assets Series A Notes for offer and sale to the Initial Purchasers and pursuant to Exempt Resales under the securities or properties Blue Sky laws of any such corporation jurisdictions as the Initial Purchasers may request and to continue such registration or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, qualification in effect so long as the recipients required for Exempt Resales and to file such consents to service of the Company’s securities agree process or other documents as may be necessary in writing prior order to the consummation of any effect such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCMregistration or qualification; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results 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 material news to take any action that would subject it to general consent to service of process or a material event taxation other than as to matters and transactions relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up PeriodPreliminary Offering Memorandum, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results Offering Memorandum or the occurrence of the material news or material event, as applicable, unless BBTCM waivesExempt Resales, in writing, such extension;any jurisdiction in which it is not now so subject.
(f) During So long as the Notes are outstanding, (i) to furnish 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 furnish as soon as practicable after the end of each quarterly period (except for the last quarterly period of three years 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 effective date beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the Registration Statementpreceding year.
(g) So long as the Notes are outstanding, to furnish to you the Initial Purchasers as soon as available copies of all reports or other communications (financial furnished by the Company to its security holders or other) furnished to stockholders, and to 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; listed and such other publicly available information concerning the Company and/or its subsidiaries as the Initial Purchasers may reasonably request (without documents incorporated therein by reference or exhibits thereto, unless requested in writing).
(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 Purchasers 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 Purchasers and persons designated by the Initial Purchasers in the quantities specified herein, (ii) such additional information concerning all costs and expenses related to the business transfer and financial condition delivery of the Company as you may from time Series A Notes to time reasonably request;
the Initial Purchasers and pursuant to Exempt Resales, including any transfer or other taxes payable thereon, (giii) To apply all costs of printing or producing this Agreement, the net proceeds from other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Shares 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 purposes Initial Purchasers 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 depository (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 Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Rights Agreement, and (xi) and all other costs and expenses incident to the performance of the obligations of the Company shall at the time hereunder for which provision is not otherwise made in this Section, but excluding fees and expenses of filing either pay counsel to the Commission the filing fee for the Rule 462(bInitial Purchasers (other than fees and expenses set forth in clause (iv) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred).
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the UnderwritersUnderwriters as follows:
(a) To prepare The Company will cause the Prospectus in Supplement to be filed as contemplated by Section 3(a) hereof (but only if you have not reasonably objected thereto by notice to the Company after having been furnished a form reasonably approved by copy within a reasonable time prior to filing) and will notify you and to file promptly of such filing. The Company will not during such period as the Prospectus pursuant to Rule 424(b) under the Act 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 is required by Rule 430A(a)(3) under law to be delivered in connection with sales of the Act; to make no Securities by any Underwriter or dealer (the "Prospectus Delivery Period"), file any amendment or supplement to the Registration Statement or Prospectus the Prospectus, unless a copy thereof shall first have been submitted to the Underwriters within a reasonable period of time prior to any Time of Delivery that the filing thereof and the Underwriters shall be disapproved by not have objected thereto in good faith.
(b) The Company will notify you promptly after reasonable notice thereof; to advise youpromptly, promptly after it receives notice thereofand will confirm such advice in writing, of the time (i) when any post-effective amendment to the Registration Statement has been filed becomes effective, (ii) of any request by the Commission for amendments or becomes effective supplements to the Registration Statement or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise youadditional information, promptly after it receives notice thereof, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any order preventing proceedings for that purpose or suspending the use of any Preliminary Prospectus or prospectusthreat thereof, (iv) of the suspension of the qualification or registration of the Shares Securities for offering or sale in any jurisdiction, or of the initiation or threatening threat of any proceeding for any such purpose; (v) of the happening of any event during the Prospectus Delivery Period that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue 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 (vi) of receipt by the Company or any representative or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement, any preliminary prospectus or the Prospectus.
(c) If at any time the Commission or any jurisdiction shall threaten to issue, or of shall issue, any request by order suspending the Commission for the amending or supplementing effectiveness of the Registration Statement or Prospectus suspending the qualification or registration of the Securities for additional information; andsale in any jurisdiction, in the event of Company will make every reasonable effort to prevent the issuance of any stop such order or of any and, if such an order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualificationshould be issued, promptly to use its best efforts to obtain the withdrawal of such order;order at the earliest possible moment.
(bd) Promptly from time The Company will furnish to time to take such action as you may reasonably request to qualify the Shares 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 Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic without charge two signed copies of the Registration Statement and of any post-effective amendments thereto, including financial statements and schedules, and all exhibits thereto (including any document filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus). During the Prospectus at such locations Delivery Period the Company will promptly furnish to you, without charge, as many copies of each preliminary prospectus, the Prospectus (containing the Prospectus Supplement) and in such quantities any amendment or supplement thereto as you may from time to time reasonably request during such period following request. The Company consents to the date hereof that a prospectus is required use of the Prospectus, as amended or supplemented from time to time, by you and by all dealers to whom the Securities may be delivered sold, both in connection with offers the offering or sales sale of Shares, the Securities and, if thereafter, during the delivery Prospectus Delivery Period.
(e) The Company will comply with all requirements imposed upon it by the Act, the 1933 Act Rules and Regulations, the Exchange Act, the Exchange Act Rules and Regulations and the TIA, as from time to time in force, so far as necessary to permit the continuance of a prospectus is required sales of, or dealings in, the Securities as contemplated by the provisions hereof and the Prospectus.
(f) The Company will comply with all the provisions of any undertakings contained, or incorporated by reference, in the Registration Statement.
(g) If during this period and if at such time the Prospectus Delivery Period any event shall have occurred as a result occur which in the judgment of which the Company or your counsel should be set forth in 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 any statement therein, in the light of the circumstances under which they were made when such Prospectus is deliveredit was made, not misleading, oror if, if for any other reason in the reasonable opinion of your counsel, it shall be is necessary during such period to supplement or amend or supplement the Prospectus in order to comply with law, the Act Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto. The Company shall not file any document under the Exchange Act, Act before the termination of the offering of the Securities by you if such document would be deemed to notify be incorporated by reference into the Prospectus to which you reasonably object.
(h) Prior to any public offering of the Securities the Company will cooperate with you and upon your request to file counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies jurisdictions as you may request including, without limitation, jurisdictions outside of the United States; provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(i) During the period of five years commencing on the date hereof, the Company will furnish to you copies of such financial statements and other periodic and special reports as the Company may from time to time reasonably request of an amended Prospectus or a supplement distribute generally to the Prospectus which holders of any class of its capital stock, and will correct such statement furnish to you a copy of each annual, quarterly, current or omission or effect such compliance;other report it files with the Commission.
(dj) To The Company will make generally available to holders of its stockholders and to deliver to you securities as soon as practicable, may be practicable but in any no event not later than eighteen months after the effective date last day of the Registration Statementfifteenth full calendar month following the end of the Company's current fiscal quarter, an earnings statement of the Company and the Subsidiaries (which need not be auditedaudited but shall be in reasonable detail) complying with for a period of 12 months beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424 under the Act, and satisfying the provisions of Section 11(a) of the Act and (including Rule 158 of the Rules and Regulations).
(k) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by you, all fees, costs and expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to, fees, costs and expenses of or relating to (i) the Act covering a period preparation, printing and filing of at least 12 months beginning after the effective date Registration Statement and exhibits to it, each preliminary prospectus, the Prospectus and any amendment or supplement to the Registration Statement or the Prospectus, (ii) the preparation and delivery of certificates representing the Securities, (iii) the printing of this Agreement and any Dealer Agreements, (iv) furnishing (including costs of shipping and mailing) such copies of the Registration Statement;, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Securities by you or by dealers to whom Securities may be sold, (v) filings required to be made by or on behalf of the Company or you, including without limitation filings to be made by the Company with the Commission, and the fees, disbursements and other charges of counsel for the Company in connection therewith, (vi) 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(h), including the reasonable fees, disbursements and other charges of counsel to you in connection therewith, and the preparation and printing of preliminary, supplemental and final Blue Sky memoranda, (vii) counsel to the Company and any surveyors, engineers, appraisers, photographers, accountants and other professionals engaged by or on behalf of the Company, (viii) the transfer agent and registrar for the Securities, (ix) the Trustee under the Indenture, (x) the preparation of slides, overheads and other presentation material to be used in any "road show" or other presentation to potential investors and the hotel, travel and other expenses of the Company's employees in connection with any such "road show" or presentation, (xi) Coopers & Xxxxxxx L.L.P. or any other accountants engaged by the Company in connection with the offering of the Securities, (xii) Xxxxx'x Investors Service, Inc. ("Moody's") and Standard and Poor's Rating Services ("S&P" and, together with Moody's, the "Rating Agencies") in connection with the rating of the Securities at the request of the Company.
(el) During If this Agreement shall be terminated by the Lock-Up PeriodCompany pursuant to any of the provisions hereof (otherwise than pursuant to Section 8 hereof) or if for any reason the Company shall be unable to perform its obligations hereunder, the Company shall notwill reimburse the Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of their counsel) reasonably incurred by the Underwriters in connection herewith.
(m) The Company will not at any time, directly or indirectly, offertake any action intended, sellor which might reasonably be expected, offer to sellcause or result in, contract to sellor which will constitute, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities stabilization of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock price of the Company Securities to facilitate the sale or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties resale of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.the
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwritersyou:
(a) To In respect of the offering of Securities, to (i) prepare a prospectus supplement setting forth the number of Securities covered thereby and their terms not otherwise specified in the Prospectus pursuant to which the Securities are being issued, the names of the Underwriters participating in the offering and the number of Securities which each severally has agreed to purchase, the names of the Underwriters acting as co-managers, if any, in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Company, the public offering price, the selling concession and reallowance if any, and such other information as the Underwriters and the Company deem appropriate in connection with the offering of the Securities and (ii) file the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) 424 under the Act not no later than the Commission’s 's close of business on the second business day following the execution and delivery date of determination of the offering price of the Securities.
(b) At any time when the Prospectus is required to be delivered under the Act in connection with sales of Securities, to advise you promptly and, if requested by you, to confirm such advice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus or other supplement or amendment to the Prospectus to be filed pursuant to the Act, (iii) the receipt of any comments from the Commission relating to the Registration Statement, any preliminary prospectus relating to the Securities, the Prospectus or any of the transactions contemplated by this Agreement, or, if applicable, such earlier time as may be required (iv) any request by Rule 430A(a)(3) under the Act; to make no amendment or supplement Commission for post-effective amendments to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed amendments or becomes effective or any supplement supplements to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise youadditional information, promptly after it receives notice thereof, of (v) the issuance by the Commission of any stop order or of any order preventing or suspending the use effectiveness of any Preliminary Prospectus the Registration Statement or prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for any such purposepurposes, or and (vi) the happening of any request by the Commission for the amending or supplementing event which makes any statement of a material fact made in the Registration Statement or the Prospectus untrue or for additional information; and, which requires the making of any additions to or changes in the event of Registration Statement or the Prospectus in order to make the statements therein not misleading. The Company will make every reasonable effort to prevent the issuance of any stop order or of and if at any time the Commission shall issue any stop order preventing or suspending the use effectiveness of any Preliminary Prospectus or prospectus or suspending any such qualificationthe Registration Statement, promptly to the Company will use its best efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(bc) Promptly from time To furnish to time you one signed copy, without charge, of the Registration Statement as first filed with the Commission and of each amendment thereto, including all exhibits and documents incorporated therein by reference, and to take furnish to you and each Underwriter designated by you such action number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits and without documents incorporated therein by reference, as you may reasonably request request. If applicable, the copies of the Registration Statement and each amendment thereto furnished to qualify the Shares for offering and sale Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) At any time when the Prospectus is required to be delivered under the securities laws Act in connection with sales of such jurisdictions as Securities, not to file any amendment to the Registration Statement or any Rule 462(b) Registration Statement or to make any amendment or supplement to the Prospectus or any Term Sheet, if applicable, of which you may request shall not previously have been advised or to which you or counsel for the Underwriters shall reasonably object; and to comply prepare and file with such laws so as the Commission, promptly upon your reasonable request, any amendment to permit the continuance Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or amendment or supplement to the Prospectus which, in the opinion of sales and dealings therein in such jurisdictions counsel for as long as the Underwriters, may be necessary to complete in connection with the distribution of the SharesSecurities by you, providedand to use its best efforts to cause the same to become promptly effective. If applicable, that in connection therewith the Company shall not Prospectus and any amendments or supplements thereto furnished to the Underwriters will be required identical to qualify as a foreign corporation or the electronically transmitted copies thereof filed with the Commission pursuant to file a general consent XXXXX, except to service of process in any jurisdiction;the extent permitted by Regulation S-T.
(ce) Prior to 10:00 a.m.A.M., Richmond, Virginia New York City time, on the first business day next succeeding after the date of this Agreement and from time to time, to furnish time thereafter for such period as in the opinion of counsel for the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required by law to be delivered in connection with offers sales by an Underwriter or sales a dealer, to furnish in New York City to each Underwriter and any dealer as many copies of Sharesthe Prospectus (and of any amendment or supplement to the Prospectus) as such Underwriter or dealer may reasonably request.
(f) If during the period specified in Section 5(e), and, if the delivery of a prospectus is required during this period and if at such time any event shall have occurred occur or condition shall exist as a result of which which, in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement 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 light of the circumstances under which they were made existing when such the Prospectus is delivereddelivered to a purchaser, not misleading, oror if, if in the opinion of counsel for any other reason the Underwriters, it shall be is necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Actapplicable law, to notify you and upon your request to file such document and forthwith to prepare and file with the Commission an appropriate amendment or supplement to the Prospectus (in form and substance reasonably satisfactory to counsel for the Underwriters) 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 without charge to each Underwriter and to any dealer in securities as many written copies thereof as such Underwriter or dealer may reasonably request.
(g) Prior to any public offering of the Securities, to cooperate with you and electronic copies 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 from time request, to time reasonably request continue such registration or qualification in effect so long as required for distribution of an amended Prospectus 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 supplement 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 Prospectus, the Registration Statement, any preliminary prospectus or the offering or sale of the Securities, in any jurisdiction in which will correct such statement or omission or effect such compliance;it is not now so subject.
(dh) To make generally available to its stockholders security holders pursuant to Rule 158 of the Act as soon as practicable an earnings statement covering the twelve-month period ending March 31, 1999, and to deliver advise you in writing, if requested by you, when such statement has been so made available.
(i) During the period when the Prospectus is required to be delivered under the Act in connection with sales of the Securities, to file all documents required to be filed by it with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act.
(j) So long as the Securities are outstanding, to mail and make generally available to all holders of the Securities any reports, financial statements or other communications furnished to the holders of its Common Stock at the same time such materials are distributed to holders of the Common Stock.
(k) So long as the Securities are outstanding, to furnish to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from the effective date of the Registration Statement, to furnish to you available copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements 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; listed and such other publicly available information concerning the Company and its subsidiaries as you may reasonably request.
(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 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 costs, if any, of printing, producing or delivering this Agreement and any other agreements or documents in connection with the offering, purchase, sale or delivery of the Securities, (iv) 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 printing or producing any Preliminary and Supplemental Blue Sky Memoranda in connection therewith (including the filing fees and fees and disbursements of counsel for the Underwriters in connection with such additional information concerning registration or qualification and memoranda relating thereto), (v) the business filing fees and financial condition disbursements of counsel for the Underwriters in connection with the review and clearance of the offering of the Securities by the National Association of Securities Dealers, Inc., if applicable, (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Securities and all costs and expenses incident to the listing of the Securities on the Nasdaq SmallCap Market, (vii) the cost of the preparation, issuance and delivery of certificates representing the Securities, (viii) the costs and charges of any transfer agent, registrar and/or depositary (including the Depository Trust Company), (ix) any fees charged by rating agencies for the rating of the Securities, (x) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture and the Securities, (xi) all other costs and expenses incident to the performance of the obligations of the Company as you may from time hereunder for which provision is not otherwise made in this Section, and (xii) any travel expenses incurred by the Company in connection with a "road show" presentation to time reasonably request;potential investors.
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(hm) To use its best efforts to list, subject to notice of issuance, list for quotation the Shares Securities on the Nasdaq National Market;SmallCap Market and to maintain the listing of the Securities on the Nasdaq SmallCap Market or any other national securities exchange for so long as the Securities are outstanding.
(n) To use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(o) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of the Company or any warrants, rights or options to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than (i) the Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
(p) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities.
(q) 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 Securities.
(r) If the Company elects Registration Statement at the time of the effectiveness of this Agreement does not cover all of the Securities, to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission registering the Securities not so covered in compliance with Rule 462(b) by 10:00 p.m.P.M., Washington, D.C. New York City time, on the date of this Agreement, Agreement and the Company shall at the time of filing either to pay to the Commission the filing fee for the such Rule 462(b) Registration Statement at the time of the filing thereof or to give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriter:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such the Prospectus pursuant to Rule 424(b) under the Securities Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430B under the Securities Act; to make no amendment or supplement to the Registration Statement Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to 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 Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending amendment or supplementing supplement of the Registration Statement Statement, any Preliminary Prospectus or the 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such order;.
(b) To furnish to the Underwriter a copy of each proposed Free Writing Prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Free Writing Prospectus to which the Underwriter reasonably objects.
(c) Not to take any action that would result in the Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Disclosure Package conflicts with the information contained in the Registration Statement then on file, or if, in the reasonable opinion of counsel for the Underwriter, it is necessary to amend or supplement the Disclosure Package to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request, either amendments or supplements to the Disclosure Package so that the statements in the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Disclosure Package, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Disclosure Package, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the first date of the public offering of the Shares as, in the opinion of counsel for the Underwriter the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by the Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable opinion of counsel for the Underwriter, 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 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 on behalf of the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(f) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request have requested and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, 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;.
(cg) Prior to 10:00 a.m.As soon as practicable, Richmond, Virginia time, on but not later than the business day next succeeding the date of this Agreement and from time to timeAvailability Date (as defined below), to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and Rule 158 under the Act covering a period of at least 12 twelve months beginning after the effective date of the Registration Statement which will satisfy the provisions of Section 11(a) of the Securities Act (for the purpose of this subsection 5(g) only, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes the effective date of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunderthat, any securities of if such fourth fiscal quarter is the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients last quarter of the Company’s securities agree in writing prior fiscal year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter).
(h) To furnish to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder holders of the Lock-Up Period Shares as if such recipients were soon as practicable after the Companyend of each fiscal year an annual report (including a balance sheet and statements of operations, changes in stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, make available to the holders of the Shares 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), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days consolidated summary financial information of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then and its consolidated subsidiaries for such quarter in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;reasonable detail.
(fi) During a period of three five years from the effective date of the Registration Statement, to make available on XXXXX or furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to 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 are listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request;, except to the extent such information is publicly available through the Commission’s website or disseminated through a national news service.
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(ij) If the Company elects to rely upon on Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, Eastern time on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act; and.
(jk) Upon During the reasonable request period beginning from the date hereof and continuing to and including the date ninety (90) days after the date hereof, the Company will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any Underwriter, to furnishsecurities that are convertible into or exchangeable for, or cause that represent the right to be furnishedreceive, to Shares or any such Underwriter an electronic version substantially similar securities without the prior written consent of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the SharesUnderwriter; provided, however, that (A) the foregoing license Company may issue and sell the securities pursuant to this Agreement, (B) the Company may issue and sell Common Stock and options to purchase Common Stock pursuant to any employee or director stock option, employee stock purchase, deferred compensation or 401(k) plans described in the Prospectus, as such plans (the “Existing Plans”) are in effect on the date of this Agreement, and (C) the Company may issue Common Stock upon the exercise of stock options pursuant to any such Existing Plan. Notwithstanding anything contained in this Section 5(k) to the contrary, if (A) during the last seventeen (17) days of the ninety-day period referenced above, the Company issues an earnings release or material news or material event relating to the Company occurs; or (B) prior to the expiration of the ninety-day period referenced above, the Company announces that it will release earnings results during the sixteen-day period beginning on the last day of such ninety-day period, and, in either the case of clause (A) or (B) immediately above, the safe harbor pursuant to Rule 139 under the Securities Act is not available to the Underwriter, the restrictions imposed by this Section 5(k) shall be used solely continue to apply until the expiration of the eighteen-day period beginning on the issuance of the earnings release or the occurrence of the materials news or material event.
(l) To apply the net proceeds from the sale of the Shares for the purpose described above, is granted without any fee and may not be assigned or transferredpurposes set forth in the Prospectus.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with ------------------------- each of the UnderwritersInitial Purchasers as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Company Shares for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority and (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; andevent that, in the event reasonable opinion 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, promptly either counsel to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required or counsel to qualify as a foreign corporation or to file a general consent to service of process in the Initial Purchasers, makes any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Series E Preferred Stock (and the related Depositary Shares) under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any of the Company Shares, under any state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request. 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 Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Prospectus Preliminary Offering Memorandum or the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Company shall promptly prepare, upon the Initial Purchasers' request, any amendment or supplement to the Preliminary Offering Memorandum or the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(d) If, after the date hereof and prior to consummation of any Exempt Resale, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of either counsel to the Company or counsel to the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements therein, in the light of the circumstances when such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary or advisable to amend or supplement the Preliminary Offering Memorandum or Offering Memorandum to comply with applicable law, (i) to notify the Initial Purchasers and (ii) forthwith to prepare an appropriate amendment or supplement to such Offering Memorandum so that the statements therein as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that such Offering Memorandum will comply with applicable law.
(e) To cooperate with the Initial Purchasers and counsel to the Initial Purchasers in connection with the qualification or registration of the Company Shares under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request and to continue such qualification in effect so long as required for the Exempt Resales; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or taxation, in each case, other than as to matters and transactions relating to the Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in any jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated hereby are consummated or this Agreement becomes effective or is terminated, to pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Company hereunder, including in connection with: (i) the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum (including, without limitation, financial statements) and all amendments and supplements thereto required pursuant hereto, (ii) the preparation (including, without limitation, duplication costs) and delivery of all preliminary and final Blue Sky memoranda prepared and delivered in connection herewith and with the Exempt Resales, (iii) the issuance, transfer and delivery by the Company of the Securities to the Initial Purchasers, (iv) the qualification or registration of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the reasonable fees and disbursements of 5 counsel to the Initial Purchasers relating thereto), (v) furnishing such copies of the Preliminary Offering Memorandum and the Offering Memorandum, and all amendments and supplements thereto, as may be requested for use in connection with Exempt Resales, (vi) the preparation of certificates for the Securities (including, without limitation, printing and engraving thereof), (vii) the fees, disbursements and expenses of the Company's counsel and accountants, (viii) all expenses and listing fees in connection with the application for quotation of the Company Shares in the National Association of Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ---- ("PORTAL"), (ix) all fees and expenses (including fees and expenses of counsel ------ to the Company) of the Company in connection with the approval of the Securities by DTC for "book-entry" transfer, (x) rating the Securities by rating agencies, (xi) the reasonable fees and expenses of the Transfer Agent and its counsel in connection with the Certificate of Designation, (xii) the performance by the Company of its other obligations under this Agreement and the other Operative Documents and (xiii) "roadshow" travel and other expenses incurred in connection with the marketing and sale of the Securities (other than out-of-pocket expenses incurred by the Initial Purchasers for travel, meals and lodgings).
(g) To use the proceeds from the sale of the Company Shares in the manner described in the Offering Memorandum under the caption "Use of Proceeds."
(h) 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 on its part to the delivery of the Company Shares.
(i) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Company Shares, in a manner that would require the registration under the Act of the sale to the Initial Purchasers or Eligible Purchasers of the Company Shares, or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act.
(j) For so long as any of the Securities 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 notify you make ------------ available to any holder of the Company Shares, in connection with any sale thereof and upon your request any prospective purchaser of such Company Shares from such holder, the information required by Rule 144A(d)(4) under the Act.
(k) To comply with all of its agreements set forth in the Registration Rights Agreement and all agreements set forth in the representation letters of the Company to file such document DTC relating to the approval of the Company Shares, by DTC for "book-entry" transfer.
(l) To use its best efforts to effect the inclusion of the Company Shares, in PORTAL and to prepare and furnish obtain approval of the Company Shares, by DTC for "book-entry" transfer.
(m) During a period of five years following the Closing Date, to deliver without charge to each Underwriter and to any dealer in securities of the Initial Purchasers, as many written and electronic they may reasonably request, promptly upon their becoming available, copies as you may from time to time reasonably request of an amended Prospectus (i) all reports or a supplement to other publicly available information that the Prospectus which will correct such statement Company shall mail or omission or effect such compliance;
(d) To otherwise make generally available to its stockholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange and such other publicly available information concerning the Company or its Subsidiaries, including without limitation, press releases.
(n) Prior to deliver the Closing Date, to you furnish to each of the Initial Purchasers, as soon as practicablethey have been publicly disclosed by the Company, but in a copy of any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement consolidated financial statements and any unaudited interim financial statements of the Company and for any period subsequent to the Subsidiaries (which need not be audited) complying with Section 11(a) of period covered by the Act and Rule 158 under financial statements appearing in the Act covering a period of at least 12 months beginning after the effective date of the Registration Statement;Offering Memorandum.
(eo) During the Lock-Up Period, Neither the Company shall notnor any of its Subsidiaries will take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Company Shares. Except as permitted by the Act, the Company will not distribute any preliminary offering memorandum, offering memorandum or other offering material in connection with the offering and sale of the Company Shares.
(p) To comply with the agreements in the Certificate of Designation, the Indenture, the Registration Rights Agreement and any other Operative Document.
(q) Not to engage in any directed selling efforts with respect to the Company Shares within the meaning of Regulation S, and that the Company and each person acting on behalf of the Company has complied and will comply with the offering restrictions requirement of Regulation S.
(r) During the period of 90 days from the date of the Offering Memorandum, the Company will not offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase purchase, establish a put equivalent position (as defined in Rule 16a-1(h) under the Exchange Act), pledge or otherwise sell or dispose of, except as provided hereunderdirectly or indirectly, any securities shares of Common Stock of the Company Company, or any securities that are substantially similar to the SharesCommon Stock, including including, but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exercisable or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant or publicly disclose the intention to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of make any such corporation offer, sale, pledge or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company)disposal, without the prior written consent of BBTCM; providedBear, howeverXxxxxxx & Co. Inc. except (i) for private sales so long as the purchaser thereof enters into a corresponding lockup agreement with Bear, that if (1) during Xxxxxxx & Co. Inc. for the last 17 days then unexpired portion of the initial Lock90-Up Periodday period, (ii) for grants of employee stock options, restricted stock and other incentive awards in the Company releases earnings results or material news or a material event relating ordinary course of business, issuances of Common Stock pursuant to the Company occurs exercise of such options or (2) prior to awards or the expiration exercise of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning any other employee stock options outstanding on the date hereof, (iii) issuances in connection with the acquisition by the Company or any of release its subsidiaries of Telecommunications Related Assets or a Telecommunications Business and (iv) dividends on securities outstanding on the earnings results Issue Date in accordance with the terms thereof or issuances in connection with the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to deliver to you (i) as soon as they are available, copies exercise of any reports and financial statements furnished to convertible securities, warrants or filed with the Commission or any national option 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares existing on the Nasdaq National Market;
(i) If the Company elects Issue Date or that are required to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission be issued pursuant to any agreement in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, existence on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredIssue Date.
Appears in 1 contract
Samples: Depositary Share Purchase Agreement (Intermedia Communications of Florida Inc)
Agreements of the Company. The Company agrees with each of the UnderwritersInitial Purchasers:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchasers promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company Initial Purchasers, to confirm such advice in writing, (i) of receipt of any notification with the Commission subsequent respect to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Series A Notes for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 5(f), of or the initiation or threatening of any proceeding for such purpose by any such purposestate securities commission or other regulatory authority, or and (ii) of the happening of any request by event that makes any statement of a material fact made in the Commission for Offering Documents (or any amendment or supplement thereto) untrue or that requires the amending making of any additions to or supplementing of changes in the Registration Statement Offering Documents (or Prospectus any amendment or for additional information; andsupplement thereto) in order to make the statements therein, in the event light of the circumstances in which they are made, not misleading. The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of the Series A Notes under any state securities or Blue Sky laws, and, if at any time any state securities commission or other regulatory authority shall issue any stop order or order suspending the qualification or exemption from qualification of any order preventing of the Series A Notes under any state securities or suspending Blue Sky laws, the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to Company shall use its best efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(b) Promptly from time To furnish to time to take such action the Initial Purchasers, without charge, as you many copies of the Offering Documents, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request request. The Company consents to qualify the Shares 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 use of the SharesOffering Documents, providedand any amendments or supplements thereto, that by the Initial Purchasers 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;with Exempt Resales.
(c) Prior Not to 10:00 a.m.amend or supplement the Offering Memorandum, Richmondwhether before or after the Closing Date, Virginia timeunless (i) the Initial Purchasers have been previously advised thereof, on and (ii) the business day next succeeding Initial Purchasers have not reasonably objected thereto (unless in the date opinion of this Agreement and from time counsel to timethe Company such amendment or supplement is necessary, in the judgment of counsel to the Company, to furnish make the Underwriters with written statements made in the Offering Memorandum not misleading); and electronic copies of to prepare, promptly upon the Registration Statement and Initial Purchasers' request, any amendment or supplement to the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following Offering Memorandum that the date hereof that a prospectus is required to be delivered Initial Purchasers deem necessary or advisable in connection with offers Exempt Resales (except to the extent any such amendment or sales supplement requested would, in the judgment of Sharescounsel to the Company, andrender the statements made in the Offering Memorandum, if as proposed to be amended or supplemented, misleading).
(d) If, after the delivery date hereof, in the opinion of a prospectus is required during this period and if at such time counsel for the Initial Purchasers, any event shall have occurred occur as a result of which it becomes necessary to amend or supplement the Prospectus Offering Memorandum to comply with any law or to make the statements therein, in the light of the circumstances at the time that the Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, to promptly (i) prepare an appropriate amendment or supplement to the Offering Memorandum so that the statements in the Offering Memorandum, as then so amended or supplemented, will comply with all applicable laws and will not, in the light of the circumstances at the time it is so delivered, be misleading, and (ii) furnish each Initial Purchaser with such number of copies of the Offering Memorandum, as amended or supplemented, as such Initial Purchaser may reasonably request.
(e) Prior to the earlier of consummation of the Exchange Offer or the effectiveness of a Shelf Registration Statement if, in the reasonable judgment of the Initial Purchasers, the Initial Purchasers or any of their affiliates (as such term is defined in the rules and regulations under the Act) are required to deliver an offering memorandum in connection with sales of, or market-making activities with respect to, the Notes, (A) to periodically amend or supplement the Offering Memorandum so that the information contained in the Offering Memorandum complies with the requirements of Rule 144A of the Act, (B) to amend or supplement the Offering Memorandum when necessary to reflect any material changes in the information provided therein so that the Offering Memorandum will not contain 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 circumstances existing as of the date the Offering Memorandum is so delivered, not misleading and (C) to provide the Initial Purchasers with copies of each such amended or supplemented would include an Offering Memorandum, as the Initial Purchasers may reasonably request. Following the consummation of the Exchange Offer or the effectiveness of a Shelf Registration Statement and for so long as the Notes are outstanding if, in the reasonable judgment of the Initial Purchasers, the Initial Purchasers or any of their affiliates (as such term is defined in the rules and regulations under the Act) are required to deliver a prospectus in connection with sales of, or market-making activities with respect to, the Notes, (A) to periodically amend the applicable registration statement so that the information contained therein complies with the requirements of Section 10(a) of the Act, (B) to amend the applicable registration statement or supplement the related prospectus or the documents incorporated therein when necessary to reflect any material changes in the information provided therein so that the registration statement and the prospectus will not contain 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 when such Prospectus existing as of the date the prospectus is so delivered, not misleadingmisleading and (C) to provide the Initial Purchasers with copies of each amendment or supplement filed and such other documents as the Initial Purchasers may reasonably request. The Company hereby expressly acknowledges that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, orregistration statement, prospectus, amendment or supplement referred to in this Section 5(e).
(f) To (i) cooperate with the Initial Purchasers and counsel for the Initial Purchasers in connection with the qualification of the Series A Notes for offer and sale by the Initial Purchasers under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request, (ii) continue such qualification in effect so long as required for Exempt Resales of the Series A Notes and (iii) file such consents to service of process or other documents as may be necessary 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 take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) So long as any of the Notes are outstanding, to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and, during the period of three years following the date of this Agreement, to deliver to the Initial Purchasers, promptly upon their becoming available, (i) copies of all current, regular and periodic reports filed by the Company with any securities exchange or with the Commission or any governmental authority succeeding to any of the Commission's functions, and (ii) copies of each report or other publicly available information of the Company mailed to the holders of Notes and such other publicly available information concerning the Company and its subsidiaries as the Initial Purchasers may request.
(h) To use the proceeds from the sale of the Series A Notes in the manner specified in the Offering Documents (and any amendments or supplements thereto) under the captions "Use of Proceeds" and "The Transactions."
(i) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of the Notes.
(j) Except as otherwise agreed to by the parties hereto, to pay all costs, expenses, fees and taxes incident to:
(1) the preparation, printing, filing and distribution under the Act of the Offering Documents (including financial statements and exhibits) and all amendments and supplements to any of them;
(2) the printing and delivery of the Operative Documents, the Series A Notes, the preliminary and supplemental Blue Sky memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection herewith and with the Exempt Resales (including in each case any disbursements of counsel to the Initial Purchasers relating to such printing and delivery);
(3) the issuance and delivery by the Company of the Series A Notes;
(4) the registration or qualification of the Series A Notes 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 to the Initial Purchasers relating to such registration or qualification and memoranda relating thereto);
(5) furnishing such copies of the Offering Documents (including all documents incorporated by reference therein) and all amendments and supplements thereto as may be requested for use in connection with the Exempt Resales;
(6) the rating of the Series A Notes by rating agencies, if any;
(7) 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. Automated Quotation System - PORTAL ("PORTAL");
(8) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Series A Notes by DTC for "book-entry" transfer; and
(9) the performance by the Company of its other obligations under this Agreement.
(k) If this Agreement shall be terminated pursuant to any of the provisions hereof (otherwise than a default by the Initial Purchasers) or if for any other reason it the Company shall be necessary during such period unable or unwilling to amend perform its obligations hereunder, the Company shall, except as otherwise agreed by the parties hereto, reimburse the Initial Purchasers for the fees and expenses to be paid or supplement reimbursed pursuant to Section 5(j) above, and reimburse the Prospectus Initial Purchasers for all reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel to the Initial Purchasers) incurred by the Initial Purchasers in order to comply connection with the transactions contemplated by this Agreement.
(l) Prior to the Closing Date, to furnish to the Initial Purchasers, as soon as they have been prepared by the Company, a copy of any consolidated financial statements of the Company for any period subsequent to the period covered by the financial statements appearing in the Offering Documents.
(m) To cause all future Restricted Subsidiaries of the Company that become co-obligors with respect to the obligations of the Company under the credit agreement, dated as of the Closing Date, between the Company and The First National Bank of Chicago, as contractual representative, and other lenders thereunder (the "NEW CREDIT AGREEMENT"), to concurrently become guarantors with respect to the Notes pursuant to the terms of the Indenture.
(n) Not to distribute prior to the Closing Date any offering material in connection with the offering and sale of the Series A Notes other than the Offering Documents.
(o) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Series A Notes in a manner that would require the registration under the Act of the sale to the Initial Purchasers or the Eligible Purchasers of Series A Notes.
(p) For so long as any of the Notes remain outstanding and during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and make available to any dealer Eligible Purchaser or beneficial owner of Notes in securities as many written connection with any sale thereof and electronic copies as you may any prospective purchaser of such Notes from time to time reasonably request of an amended Prospectus such Eligible Purchaser or a supplement to beneficial owner, the Prospectus which will correct such statement or omission or effect such compliance;information required by Rule 144A(d)(4) under the Act.
(dq) To make generally available to its stockholders and to deliver to you as soon as practicable, but comply with their agreements in any event not later than eighteen months after the effective date of the Registration StatementRights Agreement, an earnings statement and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Series A Notes by DTC for "book-entry" transfer.
(r) To cause the Registered Exchange Offer, if available, to be made in the appropriate form, as contemplated by the Registration Rights Agreement, to permit registration of the Series B Notes to be offered in exchange for the Series A Notes and to comply with all applicable federal and state securities laws in connection with the Registered Exchange Offer.
(s) To use its best efforts to effect the inclusion of the Series A Notes in PORTAL.
(t) 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 Series A Notes and the Subsidiaries (which need not be audited) complying with Section 11(a) issuance 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;Guarantees.
(eu) During the Lock-Up Periodperiod beginning from the date hereof and continuing to and including the date that is 180 days after the Closing Date, the Company shall not, directly or indirectly, not to offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase sell or otherwise sell or dispose of, except as provided hereunder, any securities of the Company (other than the Series B Notes) that are substantially similar to the Shares, Notes including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company Notes or any such substantially similar securities (other than (i) pursuant to the Company’s benefit employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the your prior written consent of BBTCM; provided, however, that if consent.
(1v) during the last 17 days Not to cause any advertisement of the initial Lock-Up Period, the Company releases earnings results Notes to be published in any newspaper or material news periodical or a material event posted in any public place and not to issue any circular relating to the Company occurs or (2) prior to Notes, except such advertisements that include the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) required by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Gfsi Inc)
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than within the Commission’s close of business on the second business day following the execution and delivery of this Agreement, time period prescribed or, if applicable, such earlier time as may be required by Rule 430A(a)(3) 430A under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares Securities for offering and sale under the securities laws of such jurisdictions as you may request have requested 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that as a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To As soon as practicable, but not later than the Availability Date (as defined below), to make generally available to its stockholders security holders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by Statement which will satisfy the provisions of this Section 5(e11(a) of the Act (for the remainder purpose of this subsection 5(d) only, "Availability Date" means the 45th day after the end of the Lock-Up Period as if such recipients were fourth fiscal quarter following the Company), without the prior written consent of BBTCM; provided, however, fiscal quarter that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three years from includes the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholdersexcept that, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with if such fourth fiscal quarter is 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version last quarter of the Company’s trademarks's fiscal year, servicemarks and corporate logo for use on "Availability Date" means the website, if any, operated by 90th day after the end of such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.fourth fiscal quarter);
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersPurchaser:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus prior to any the Time of Delivery that shall be disapproved by you the Purchaser in good faith promptly after reasonable notice thereof; to advise youthe Purchaser, promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment to the Registration Statement thereto, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you the Purchaser with copies thereof; to timely 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 subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Redemption Shares; to advise youthe Purchaser, 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 prospectusthe Prospectus, of the suspension of the qualification of the Redemption Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary the Prospectus or prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such order;its withdrawal.
(b) Promptly from time to time to take such action as you the Purchaser may reasonably request to qualify the Redemption Shares for offering and sale under the securities laws of such jurisdictions as you the Purchaser 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 Redemption Shares, provided, 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;.
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Purchaser with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you the Purchaser may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Sharesrequest, and, if the delivery of a prospectus is required during this period at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Redemption Shares 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify you the Purchaser and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.Purchaser's
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant to Rule 424(b) under the Act not later than the Commission’s 's close of business on the second business day following the execution and delivery of this Agreement, Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Date which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus Prospectus is required in connection with the offering or sale of the SharesSecurities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectusthe Prospectus, of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; 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 the Prospectus or suspending any such qualification, promptly to use promptly its best efforts to obtain the withdrawal of such orderits withdrawal;
(b) Promptly from time to time to take such action actions as you may reasonably request to qualify the Shares 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 SharesSecurities, provided, 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;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to To furnish the Underwriters Underwriter with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of SharesSecurities, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter you and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as As soon as practicable, but in any event not later than eighteen months practicable after the effective date of the Registration StatementStatement (and in no event later than 45 days after the end of the fiscal quarter in which the first anniversary date of the effective date of the Registration Statement occurs), to make generally available to its shareholders and to deliver to you, an earnings statement of the Company and Company, conforming with the Subsidiaries (which need not be audited) complying with requirements of Section 11(a) of the Act and Rule 158 under the Act Act, covering a period of at least 12 months beginning after the effective date of the Registration Statement;
(e) During For a period of 180 days from the Lock-Up Perioddate of the Prospectus, the Company shall not, not to directly or indirectly, indirectly offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, of any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) the Securities or pursuant to the Company’s benefit employee stock option plans existing onor pursuant to options, warrants or upon the conversion or exchange of convertible or exchangeable securities rights outstanding as of, on the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the your prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extensionconsent;
(f) To comply with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder as if the Company were an issuer subject to the requirements of Rule 13a-1 and Form 10-K, Rule 13a-11(a) and Form 8-K, and Rule 13a-13 and Form 10-Q under the Exchange Act;
(g) During a period of three 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 stockholdersshareholders, and to 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;
(gh) To apply the net proceeds from the sale of the Shares Securities for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;; and
(i) If the Company elects To continue to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay retain Xxxxxx Xxxxxxxx LLP (or such other nationally recognized "Big Six" accounting firm acceptable to the Commission Underwriters) as the filing fee Company's independent public accountants for the Rule 462(b) Registration Statement or give irrevocable instructions for preparation of the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version consolidated financial statements of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Agreements of the Company. The Company covenants and agrees with each of the UnderwritersInitial Purchaser as follows:
(a) To prepare advise the Prospectus in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orInitial Purchaser promptly and, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchaser, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for such purpose by any such purpose, state securities commission or other regulatory authority or (ii) of the happening of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of that makes any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 made in the Preliminary Offering Memorandum or omit the Offering Memorandum untrue or that requires the making of any additions to state any material fact necessary or changes in the Preliminary Offering Memorandum or the Offering Memorandum in order to make the statements of material fact therein, in the light of the circumstances under which they were made when such Prospectus is deliveredare made, not misleading, or. The Company shall make every reasonable effort to prevent the issuance of any stop order or order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws and, if for at any time any state securities commission or other reason it regulatory authority shall be necessary during issue an order suspending the qualification or exemption of any Notes under any state securities or Blue Sky laws, the Company shall make every reasonable effort to obtain the withdrawal or lifting of such period order at the earliest possible time.
(b) To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Company, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchaser may reasonably request. 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) Not to amend or supplement the Prospectus in order to comply with the Act Preliminary Offering Memorandum or the Exchange ActOffering Memorandum prior to the Closing Date unless the Initial Purchaser shall previously have been advised thereof and shall not have objected thereto within a reasonable time after being furnished a copy of such amendment or supplement. The Company shall promptly prepare, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to the Initial Purchaser's reasonable request, any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus amendment or a supplement to the Prospectus which will correct such statement Preliminary Offering Memorandum or omission the Offering Memorandum that may be necessary or effect such compliance;advisable in connection with Exempt Resales.
(d) To make generally available If, after the date hereof and prior to its stockholders and to deliver to you as soon as practicableconsummation of any Exempt Resale, but in any event not later than eighteen months after shall occur as a result of which, in the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock judgment of the Company or any securities that are convertible into or exchangeable for, or that represent in the right to receive, Common Stock or any other capital stock reasonable opinion of counsel for the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing onInitial Purchaser, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.becomes
Appears in 1 contract
Agreements of the Company. The Company hereby agrees with each of the UnderwritersAgent that:
(a) To prepare The Company will use its best efforts to cause the Prospectus Registration Statement to be declared effective by the SEC. The Company will notify the Agent immediately and confirm the notice in a form reasonably approved writing thereto (i) of any request by you and or the receipt of any comments from the SEC with respect to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of transactions contemplated by this Agreement, or, if applicable, such earlier time as may be required ; (ii) of any request by Rule 430A(a)(3) under or any comments or other communications received from the Act; to make no SEC and any request by the SEC for any amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise youthe Prospectus, promptly after it receives notice thereof, of the time when any amendment or for additional information with respect to the Registration Statement has been filed transactions contemplated therein or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus Offering; and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, (iii) of the issuance by the Commission SEC or any court or governmental agency or body of any stop order or other order suspending or enjoining the effectiveness or approval of the Registration Statement, the Prospectus or the Offering or of the institution of any order preventing proceedings for that purpose or suspending the use of any Preliminary Prospectus or prospectus, notification of the suspension of the qualification of the Shares for offering or sale Debentures in any jurisdiction, of jurisdiction or the initiation or threatening of any proceeding for that purpose or the threat of any such purpose, or of any request action. The Company will make every reasonable effort to prevent the issuance by the Commission for the amending SEC and any court or supplementing of the Registration Statement governmental agency or Prospectus or for additional information; and, in the event of the issuance body of any stop order or other such order, or request for amendment or additional information or the commencement of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending proceeding and, if any such qualificationorder, promptly to use its best efforts request or proceeding shall at any time be issued or commenced, to obtain the withdrawal of such order;lifting thereof, to respond thereto or to obtain the termination thereof at the earliest possible moment.
(b) Promptly The Company will deliver to the Agent, without charge, from time to time to take such action number of copies of the Prospectus and related documents (as you amended or supplemented), as the Agent may reasonably request. The Company authorizes the Agent, subject to all requirements of applicable law, to use the Prospectus (as the same may be amended or supplemented) in connection with the sale of the Debentures.
(c) The Company will deliver to the Agent at least two complete copies (including exhibits) of its Registration Statement on Form SB-2 as originally filed with the SEC and of each amendment thereto.
(d) The Company will comply, at its own expense, with all requirements imposed upon it by the SEC and by the Act, the Exchange Act and the SEC Rules and Regulations, including, without limitation, Rules 10b-5 and 10b-6 under the Exchange Act, in each case as from time to time in effect, so far as necessary to permit the continuance of offers, sales or dealings in Debentures during such period in accordance with the provisions hereof and the Prospectus.
(e) If, at any time during the period when the Prospectus is required by law to be delivered, any event occurs as a result of which, in the opinion of counsel to the Company or the Agent, the Prospectus, including any amendments or supplements, would contain 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 the light of the circumstances under which they were made, not misleading, or if it is necessary in the opinion of counsel to the Company or the Agent at any time to amend or supplement the Prospectus, including any amendments or supplements to comply with the Act and all other laws, the Company, as appropriate, will promptly advise the Agent thereof and will promptly prepare and file with the SEC and any other authority with jurisdiction an amendment or supplement.
(f) The Company will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as disclosed in the Prospectus.
(g) The Company will not acquire any Debentures prior to the Closing Date.
(h) During the period of three years after the date of the Prospectus, the Company will furnish to the Agent upon request (i) as soon as practicable after the end of each fiscal year, the annual report of the Company containing the balance sheet of the Company as of the close of such fiscal year and corresponding statements of income, stockholders' equity and changes in financial position for the year then ended, such financial statements to qualify be certified by independent public accountants; (ii) as soon as practicable after the Shares end of each fiscal quarter (other than the last quarter of each fiscal year), an unaudited balance sheet and statements of income, stockholders' equity and changes in financial position of the Company as at the end of and for such quarter; (iii) as soon as available, a copy of each proxy statement, financial statement and periodic and special reports of the Company mailed to holders of any class of its securities registered under Section 12 of the Exchange Act; (iv) as soon as practicable after the filing thereof, of each report or other statement or document filed by the Company with the SEC or other regulatory agency or with any national securities exchange or quotation system on which any securities of the Company may be listed or quoted; and (v) from time to time, such other information concerning the Company as the Agent may reasonably request.
(i) The Company will comply or cause to be complied with the conditions to the obligations specified in Section 11 hereof.
(j) The Company shall promptly prepare and file with the SEC, from time to time, such reports as may be required to be filed by the SEC Rules and Regulations, including, without limitation, reports with respect to the sale of the Debentures and the application of the proceeds thereof as may be required in accordance with Rule 463 under the Act.
(k) The Company shall comply in all material respects with the undertaking given by the Company in connection with the qualification of the Debentures for offering and sale under the Blue Sky Laws.
(l) The Company shall use the net proceeds from the sale of the Debentures in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(m) The Company will not, for a period of 90 days after the date hereof, without the prior written consent of the Agent, offer for sale, sell or issue, contract to sell or otherwise dispose of, any Debentures of, or any securities laws convertible into or exercisable for, Debentures issued pursuant to the Offering or sell or grant any options, rights or warrants with respect to Debentures.
(n) Other than as permitted by applicable law, the Company will not distribute any Prospectus or other offering material in connection with the subject offering and sale of the Debentures.
(o) The Company will qualify the Debentures under the Blue Sky Laws of such jurisdictions as you the Company and the Agent mutually agree to make such applications, file such consents to service of process or other documents and furnish such other information as may request be reasonably requested for that purpose and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long a period as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) Agent may mutually agree. The Company will notify the Agent immediately of, and confirm in writing, the suspension of qualification of the Act and Rule 158 under Debentures or the Act covering a period threat of at least 12 months beginning after the effective date such action in any jurisdiction. In each jurisdiction where any of the Registration Statement;
(e) During the Lock-Up PeriodDebentures shall have been qualified as provided above, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except will make and file such statements and reports as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable forrequired by, or that represent in the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as offuture may be required by, the date laws of this Agreement, or such jurisdiction.
(iip) in connection with At the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up PeriodClosing Date, the Company releases earnings results or will have completed the Offering in all material news or a material event relating to respects as described in the Company occurs or (2) prior to the expiration Prospectus and in accordance with all applicable laws, regulations, decisions and orders of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;SEC and state securities authorities.
(fq) During a period of three 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 stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed The Company will maintain appropriate arrangements with the Commission Escrow Agent for depositing all funds received from persons mailing subscriptions for 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 orders to time reasonably request;
(g) To apply the net proceeds from the sale of the Shares for the purposes set forth purchase Debentures in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission Offering in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall an account bearing interest at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the websiterate, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.described
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersInitial Purchaser as follows:
(a) The Company will furnish to the Initial Purchasers, without charge, such number of copies of the Preliminary Offering Memorandum and the Offering Memorandum and any amendments or supplements thereto as they may reasonably request.
(b) To prepare the Prospectus in a form reasonably approved by advise you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, orpromptly and, if applicable, such earlier time as may be required requested by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereofto confirm such advice in writing, of the time when any amendment to 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 file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, (i) of the issuance by the Commission or any state securities commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus qualification or prospectus, of the suspension of the exemption from qualification of the Shares Notes and the Guarantees for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for any such purpose, or of any request purpose by the Commission for or any state securities commission or other regulatory authority, and (ii) the amending happening of any event that makes any statement of a material fact made in the Preliminary Offering Memorandum or supplementing the Offering Memorandum untrue or which requires the making of any additions to or changes in the Registration Statement Preliminary Offering Memorandum or Prospectus or for additional information; andOffering Memorandum in order to make the statements therein, in the event light of the circumstances under which they were made, not misleading. The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or of any order preventing or suspending the qualification or exemption of the Notes and the Guarantees under any state securities or blue sky laws and, if at any time any state securities commission shall issue any stop order suspending the qualification or exemption of the Notes and the Guarantees under any state securities or blue sky laws, the Company shall use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best all commercially reasonable efforts to obtain the withdrawal or lifting of such order;order at the earliest possible time.
(bc) Promptly from time The Company will not make any amendment or supplement to time the Preliminary Offering Memorandum or to take such action as you the Offering Memorandum without the prior consent of the Initial Purchasers, which consent will not be unreasonably withheld.
(d) The Company consents to the use, in accordance with the securities or Blue Sky laws of the jurisdictions in which the Notes and the Guarantees 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 and the Guarantees are offered by the Initial Purchasers and by all dealers to whom Notes and the Guarantees may reasonably request to qualify be sold, in connection with the Shares for offering and sale under of the securities laws Notes and the Guarantees.
(e) If, at any time prior to completion 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 SharesNotes and the Guarantees by the Initial Purchasers to Eligible Purchasers, provided, any event occurs that in connection therewith the judgment of the Company shall or in the reasonable opinion of counsel for the Initial Purchasers should be set forth in the Offering Memorandum so that the Offering Memorandum does not be required to qualify as a foreign corporation or to file a general consent to service of process in include any jurisdiction;
(c) Prior to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may from time to time reasonably request during such period following the date hereof that a prospectus is required to be delivered in connection with offers or sales of Shares, 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 a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is deliveredmade, not misleading, or, or if for any other reason it shall be is necessary during such period to supplement or amend or supplement the Prospectus Offering Memorandum in order to comply with any law, the Act Company will prepare an appropriate supplement or amendment thereto, and will expeditiously furnish to the Exchange ActInitial Purchasers a reasonable number of copies thereof.
(f) The Company will cooperate with the Initial Purchasers and with their counsel in connection with the qualification of the Notes and the Guarantees for offering and sale by the Initial Purchasers under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate; provided that (i) the Company shall in no event be required to continue in effect any such qualification for a period of more than 180 days after the Closing Date, (ii) the Company will not be required to notify you and upon your request qualify as a foreign corporation or to file a general 16 consent to service of process in any such document state and (iii) the Company will not be required to prepare and furnish without charge subject itself to each Underwriter and to taxation in any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;jurisdiction if not otherwise so subject.
(dg) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after For a period of 90 days from the effective date of the Registration StatementOffering Memorandum, an earnings statement of the Company and the Subsidiaries (which need each of its subsidiaries agrees not be audited) complying with 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) During the Lock-Up Period, the Company shall notto, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose ofpurchase, except as provided hereunder, issue any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are instrument convertible into or exchangeable for, or that represent otherwise transfer or dispose of, any debt securities substantially similar to the right to receive, Common Stock Notes issued or guaranteed by any other capital stock of the Company or any such substantially similar securities (other than its subsidiaries, except (i) in exchange for the Notes in connection with the Exchange Offer or (ii) with the prior consent of the Initial Purchasers, which consent shall not be unreasonably withheld.
(h) 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, if the Company shall cease to file reports under Section 13 and 15(d) of the Exchange Act with the Securities and Exchange Commission, 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 Company’s benefit plans existing on, Act to permit compliance with Rule 144A in connection with resale of the Notes.
(i) If this Agreement terminates or upon is terminated after execution and delivery pursuant to any provisions hereof or if this Agreement is terminated by the conversion Initial Purchasers because of any failure or exchange refusal on the part of convertible the Company or exchangeable securities outstanding as of, the date Subsidiary Guarantors to comply with the terms or fulfill any of the conditions of this Agreement, or the Company and the Subsidiary Guarantors agree to reimburse the Initial Purchasers for all out-of-pocket expenses (iiincluding reasonable fees and expenses of their counsel) reasonably incurred by it in connection with herewith, but without any further obligation on the merger with or acquisition part of another corporation or entity the Company or the acquisition Subsidiary Guarantors for loss of profits or otherwise. Notwithstanding the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Periodforegoing, the Company releases earnings results or material news or and the Subsidiary Guarantors shall not be required to reimburse the Initial Purchasers if this Agreement is terminated as a material event relating to the Company occurs or (2) prior to the expiration result of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day conditions in Section 7(n) hereof not being satisfied (other than as a result of the initial Lock-Up Period, then suspension of trading in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 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;on any exchange or over-the-counter market).
(gj) To The Company will apply the net proceeds from the sale of the Shares for Notes in accordance with the purposes description set forth in the Prospectus;Offering Memorandum under the caption "Use of Proceeds".
(hk) To Except as stated in this Agreement and in the Preliminary Offering Memorandum and the Offering Memorandum, neither the Company nor any of its subsidiaries 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 the Notes and the Guarantees to facilitate the sale or resale of the Notes and the Guarantees. Except as permitted by the Act, neither the Company nor any of its subsidiaries will distribute any offering material in connection with the Exempt Resales.
(l) The Company will use its reasonable best efforts to listpermit the Notes to be designated Portal Market(SM) ("PORTAL") securities in accordance with the rules and regulations 17 adopted by the National Association of Securities Dealers, subject Inc. relating to notice trading in PORTAL and to permit the Notes to be eligible for clearance and settlement through DTC.
(m) During the period of issuancetwo years after the Closing Date or until such earlier time when all the Notes are registered under the Act, the Shares on Company will not, and will not permit any of its "affiliates" (as defined in Rule 144 under the Nasdaq National Market;Act) to, resell any of the Notes that constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(n) The Company and each of its subsidiaries agrees not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Notes and the Guarantees 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.
(o) In connection with the offering of the Notes and the Guarantees, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes and the Guarantees, the Company will not, and will use its reasonable best efforts to cause its controlled affiliates not to, either alone or with one or more other persons, offer or sell the Notes and the Guarantees in the United States (i) If by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Act or (ii) with respect to any such securities sold in reliance on Rule 903 under the Act, by means of any directed selling effort within the meaning of Rule 902 or otherwise in violation of the offering restriction requirements of Regulation S under the Act.
(p) The Company elects will do and perform all things required or necessary to rely upon Rule 462(b)be done and performed under this Agreement by it prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers' obligations hereunder to purchase the Notes.
(q) The Company will not be or become an "investment company" or a company "controlled" by an "investment company" within the meaning of the 1940 Act.
(r) On the Closing Date, the Company shall file will deliver to the Initial Purchasers an assistant secretary's certificate reasonably satisfactory to the Initial Purchasers that will include the following documents with respect to the Company: (i) charter, (ii) by-laws, (iii) resolutions authorizing the issuance of the Notes and (iv) certificates of good standing and/or qualification to do business as a Rule 462(bforeign corporation in such jurisdiction as the Initial Purchasers may reasonably request.
(s) On the Closing Date, the Company will deliver to the Initial Purchaser the Registration Statement with Rights Agreement executed and delivered by duly authorized officers of the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, Company and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredSubsidiary Guarantors.
Appears in 1 contract
Agreements of the Company. The Company agrees with each In further consideration of the Underwritersagreements of the Initial Purchasers herein contained, the Company covenants as follows:
(a) To prepare the Prospectus Preliminary Offering Memorandum and Offering Memorandum in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Actyou; to make no amendment or any supplement to the Registration Statement or Prospectus prior to any Time of Delivery that Preliminary Offering Memorandum and Offering Memorandum which shall be disapproved by you your counsel upon legal grounds in writing, after consultation with you, promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file .
(b) To advise the Initial Purchasers promptly all reports and any definitive proxy or information statements required to be filed and, if requested by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required Initial Purchasers, confirm such advice in connection with the offering or sale of the Shares; to advise youwriting, promptly after it receives notice thereof, (i) of the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares Senior Notes for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, of or the initiation or threatening of any proceeding by any state securities commission or any other federal or state regulatory authority for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of . The Company shall use its best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Senior 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 preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;the
(c) Prior to 10:00 a.m., Richmond, Virginia New York City time, on the business day Business Day next succeeding the date of this Agreement Agreement, or as soon as otherwise mutually agreed, and from time to timetime thereafter, to furnish the Underwriters with written Initial Purchasers and electronic those persons identified by the Initial Purchasers to the Company as many copies of the Registration Statement Offering Memorandum, and the Prospectus at such locations and any amendments or supplements thereto, in such quantities as you the Initial Purchasers may from time reasonably request. Subject to time reasonably request during such period following the date hereof that a prospectus is Initial Purchasers' compliance with their 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 required to be delivered pursuant hereto, by the Initial Purchasers in connection with offers or sales of Shares, and, if the delivery of a prospectus is required during this period and if at Exempt Resales.
(d) Until such time as either of the Registration Statements shall be declared effective by the Commission, but in no event later than nine months after the date of the Offering Memorandum, any event shall have occurred as a result of which the Prospectus Offering Memorandum 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 light of the circumstances under which they were made when such Prospectus Offering Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary or desirable during such same period to amend or supplement the Prospectus in order to comply with the Act or the Exchange ActOffering Memorandum, to notify you and upon your request to file such document prepare and, subject to Section 5(a) and to prepare and 5(j) hereof, furnish without charge to each Underwriter Initial Purchaser and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus Offering Memorandum or a supplement to the Prospectus Offering Memorandum which will correct such statement or omission or effect such compliance;
(d) To make generally available to its stockholders and to deliver to you as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement, an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the 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) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to listqualify the Senior Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Initial Purchasers and their counsel for, reasonable filing fees and expenses in connection therewith (including the reasonable fees and disbursements of counsel to the Initial Purchasers and filing fees and expenses paid and incurred prior to the date hereof), provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or as a securities dealer or to file a general consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(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 on a consolidated basis, 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 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 any of the Senior Notes remain outstanding and during any period in which either the Company is not subject to notice Section 13 or 15(d) of issuancethe Exchange Act, to make available to any holder of Senior Notes in connection with any sale thereof and any prospective purchaser of such Senior Notes from such holder, the Shares information required by Rule 144A(d)(4) under the Act.
(h) To pay all expenses, fees and taxes (other than transfer taxes on sales by the Nasdaq National Market;respective Initial Purchasers) in connection with the issuance and delivery of the Senior Notes, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (e) of this Section 5) of Skadden, Arps, Slate, Meagxxx & Xlom XXX, New York, New York, counsel to the Initial Purchasers, only in the events provided in paragraph (i) of this Section 5, the Initial Purchasers hereby agreeing to pay such fees and disbursements in any other event, and that except as provided in such paragraph (i), the Company shall not be responsible for any out-of-pocket expenses of the Initial Purchasers in connection with their services hereunder.
(i) If the Company elects Initial Purchasers shall not take up and pay for the Senior Notes due to rely upon Rule 462(b), the failure of the Company to comply with any of the conditions specified in Section 10 hereof, or, if this Agreement shall file a Rule 462(b) Registration Statement be terminated in accordance with the Commission provisions of Section 11(b) hereof prior to the Closing Date, to pay the reasonable fees and disbursements of Skadden, Arps, Slate, Meagxxx & Xlom XXX, counsel to the Initial Purchasers, and, if the Initial Purchasers shall not take up and pay for the Senior Notes due to the failure of the Company to comply with any of the conditions specified in compliance Section 10 hereof, to reimburse the Initial Purchasers for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $3,000, incurred in connection with Rule 462(b) the financing contemplated by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and.
(j) Upon During the period referred to in paragraph (d) of this Section 5, to not amend or supplement the Offering Memorandum unless the Company has furnished the Initial Purchasers and counsel to the Initial Purchasers with a copy for their review and comment a reasonable request time prior to filing and has reasonably considered any comments of the Initial
(k) During the period referred to in paragraph (d) of this Section 5, to furnish the Initial Purchasers with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(l) During the period referred to in paragraph (d) of this Section 5, to comply with all requirements under the Exchange Act relating to the filing with the Commission of its reports pursuant to Section 13 of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(m) To comply in all material respects with all of its agreements set forth in the Registration Rights Agreement.
(n) To obtain the approval of The Depository Trust Company ("DTC") for "book-entry" transfer of the Notes, and to comply in all material respects with all of its 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) Not to (or permit any affiliate to) sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any Underwritersecurity (as defined in the Act) that would be integrated with the sale of the Senior Notes to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Senior Notes under the Act.
(p) Not to voluntarily claim, and to furnishactively resist any attempts to claim, or the benefit of any usury laws against the holders of any Notes.
(q) To cause the Exchange Offer to be furnishedmade in the appropriate form to permit Exchange Notes registered pursuant to the Act to be offered in exchange for the Senior Notes and to comply in all material respects with all applicable federal and state securities laws in connection with the Exchange Offer.
(r) During the period of two years after the Closing Date, to such Underwriter an electronic version not to, and not permit any of its affiliates (as defined in Rule 144 under the Act) to, resell any of the Company’s trademarks, servicemarks and corporate logo for use on Notes which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(s) To apply the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering net proceeds of the Shares; provided, however, that offering and sale of the foregoing license shall be used solely for Senior Notes in the purpose described above, is granted without any fee and may not be assigned or transferredmanner set forth in the Offering Memorandum under the caption "Use of Proceeds".
Appears in 1 contract
Agreements of the Company. The Company agrees with each of the UnderwritersUnderwriters as follows:
(a) To prepare notify the Prospectus Underwriters immediately and confirm the notice in a form reasonably approved by you and to file such Prospectus pursuant to Rule 424(bwriting (i) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no amendment or supplement to the Registration Statement or Prospectus prior to any Time of Delivery that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when receipt of any request by the SEC for any amendment to the Registration Statement has been filed or becomes effective amendment or any supplement to the Prospectus or any amended Prospectus has been filed for additional information and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing the initiation or suspending the use threatened initiation of any Preliminary Prospectus proceedings for that purpose or prospectus, of the suspension or threatened suspension of the qualification of the Shares Bonds for offering or sale in any jurisdiction. The Company will make every reasonable effort to prevent the issuance by the SEC of any stop order and, if any such stop order shall at any time be issued, to obtain the lifting thereof at the earliest moment.
(b) Not to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424 under the Securities Act and including documents deemed to be incorporated by reference in the Prospectus) prior to the Distribution Completion Date without first having furnished the Underwriters with a copy of the initiation proposed form thereof and given the Underwriters a reasonable opportunity to review and comment respecting the same and having given reasonable consideration to any comments or threatening of any proceeding for any such purpose, or of any request objections made by the Commission for Underwriters.
(c) To deliver to the amending or supplementing Underwriters one signed copy of the Registration Statement or Prospectus or for additional information; andas originally filed and each amendment thereto, including, in each case, documents incorporated by reference into the event Registration Statement and one set of exhibits thereto (other than exhibits incorporated by reference which will be furnished upon specific request), and to deliver to the Underwriters a reasonable number of conformed copies 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 Registration Statement as originally filed and each amendment and post-effective amendment thereto, including such qualification, promptly to use its best efforts to obtain the withdrawal of such order;incorporated documents (without exhibits).
(bd) During the period when a prospectus is required to be delivered under the Securities Act, to comply so far as it is able, and at its own expense, with all requirements imposed upon it by the Securities Act, and by Section 13 and Section 14 of the Exchange Act, as now or hereafter amended, and by the rules and regulations thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Bonds during such period in accordance with the provisions hereof and of the Prospectus.
(e) Promptly from time to time to take such action as you the Underwriters may reasonably request to endeavor in good faith, in cooperation with the Underwriters, to qualify the Shares Bonds for offering and sale under the applicable securities laws of such jurisdictions as you the Underwriters may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, designate; provided, however, that in connection therewith the Company shall not be required obligated to file any general consent to service or to qualify as a foreign corporation or to file as a general consent to service of process dealer in securities in any jurisdiction;jurisdiction in which it is not so qualified. In each jurisdiction where any of the Bonds shall be qualified as above provided, the Company will make and file such statements and reports in each year as are or may be reasonably required by the laws thereof.
(cf) Prior The Company will deliver to 10:00 a.m., Richmond, Virginia time, on the business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Registration Statement and the Prospectus at such locations and in such quantities as you may each Underwriter from time to time reasonably request during such the period following the date hereof that when a prospectus is required to be delivered in connection with offers under the Securities Act such number of copies of the Prospectus (as amended or sales of Sharessupplemented and including incorporated documents) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act and rules and regulations thereunder; provided, andhowever, if that the delivery of a prospectus is required during copies of the Prospectus (as amended or supplemented and including incorporated documents) more than nine months after the date of this period and if Agreement shall be at the expense of the Underwriter requesting such time delivery.
(g) If prior to the Distribution Completion Date any event shall have occurred occur as a result of which it is necessary to amend or supplement the Preliminary Prospectus or Prospectus, as then the case may be, in order to make the Preliminary Prospectus or Prospectus, as the case may be, not misleading in light of the circumstances existing at the time it is delivered to a purchaser, or if it is necessary to amend or supplement the Preliminary Prospectus or Prospectus, as the case may be, to comply with law, to forthwith prepare and furnish to the Underwriters, without expense to the Underwriters, a reasonable number of copies of an amendment or amendments or a supplement or supplements to the Preliminary Prospectus or Prospectus, as the case may be, which will amend or supplement the Preliminary Prospectus or Prospectus, as the case may be, so that as amended or supplemented would include an it will not contain 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 when such Prospectus is deliveredmade, not misleading, oror so that the Preliminary Prospectus or Prospectus, if for any other reason it shall be necessary during such period to amend or supplement as the Prospectus in order to case may be, will comply with law. For the Act or purposes of this Section 4(g), the Exchange Act, Company will furnish to notify you and upon your request to file the Underwriters such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities information as many written and electronic copies as you the Underwriters may from time to time reasonably request of an amended Prospectus request. Neither the Underwriters’ consent to, nor the Underwriters’ delivery of, any such amendment or a supplement prior to the Prospectus which will correct such statement or omission or effect such compliance;Time of Delivery shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(dh) Not to publicly offer or sell any long- or intermediate-term debt between the date of this Agreement and Time of Delivery without the prior written consent of the Underwriters.
(i) To make generally available to its stockholders and to deliver to you security holders as soon as practicable, but in any event not later than eighteen months 75 days after the effective date close of the Registration Statementperiod covered thereby, an earnings earning statement of the Company and the Subsidiaries (which need not be audited) in form complying with the provisions of Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158 under thereunder), which need not be certified by independent public accountants unless required by the Securities Act or the rules and regulations thereunder) covering a 12-month period of at least 12 months beginning after on the effective date first day of the Registration Statement;
(e) During the Lock-Up Period, the Company shall not, directly or indirectly, offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any shares of Common Stock or any other capital stock of the Company or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Stock or any other capital stock of the Company or any such substantially similar securities (other than (i) pursuant to the Company’s benefit plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, calendar quarter following the date of this Agreement, or (ii) in connection with the merger with or acquisition of another corporation or entity or the acquisition of the assets or properties of any such corporation or entity and the related entry into a merger or acquisition agreement with respect to such merger or acquisition, so long as the recipients of the Company’s securities agree in writing prior to the consummation of any such transaction, pursuant to an instrument in form and substance reasonably satisfactory to BBTCM, to be bound by the provisions of this Section 5(e) for the remainder of the Lock-Up Period as if such recipients were the Company), without the prior written consent of BBTCM; provided, however, that if .
(1) during Prior to the last 17 days Time of Delivery, to deliver the Supplemental Indentures in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indentures for recording, and, as soon as practicable, to provide counsel to the Underwriters a list of the initial Lock-Up Periodrecording information for all such filings, and (2) promptly following the Company releases earnings results or material news or furnishing thereof to the Trustee, to provide counsel to the Underwriters with a material event copy of the opinion in respect of the recording of the Supplemental Indenture relating to the Company occurs or (2Bonds required by Section 9.06(a) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless BBTCM waives, in writing, such extension;
(f) During a period of three 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 stockholders, and to 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 Shares for the purposes set forth in the Prospectus;
(h) To use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon the reasonable request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares; provided, however, that the foregoing license shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferredIndenture.
Appears in 1 contract
Samples: Underwriting Agreement (Northern Illinois Gas Co /Il/ /New/)
