Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows: (a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented. (b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible. (c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards. (d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance. (e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request. (f) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company. (g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.
Appears in 4 contracts
Samples: Broker Dealer Selling Agreement (Sovereign Credit Finance I Inc), Broker Dealer Selling Agreement (Sovereign Credit Finance I Inc), Broker Dealer Selling Agreement (Sovereign Credit Finance I Inc)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts Prior to cause the Registration Statement, if not effective at termination of the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If requiredOffering, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives with a copy for its review prior to filing and will not file any such proposed amendment, supplement or Rule 462(b) Registration Statement to which the Representatives reasonably object. The Company will cause the Prospectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the SEC in Commission pursuant to the manner and applicable paragraph of Rule 424(b) within the time period required by prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) under the Act. During or when any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Rule 462(b) Registration Statement or dealings in the Notes in accordance any Written Testing-the-Waters Communication shall have been filed with the provisions hereof and Commission, (ii) when, prior to termination of the ProspectusOffering, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes shall have been filed or become effective; , (Biii) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (Civ) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any the Preliminary Prospectus or Prospectus, the Prospectus or any amendment Written Testing-the-Waters Communication, or supplement thereto of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain or the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer occurrence of any such special standards.
(d) The Company consents suspension or objection to the use of the Prospectus (Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and any using its best efforts to have such amendment or supplement theretonew registration statement declared effective as soon as practicable.
(b) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating prior to the Notes is required filing of the Prospectus pursuant to be delivered under the ActRule 424(b), any event or development occurs as a result of which the Prospectus, as then amended or supplemented, Statutory Prospectus would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives in such quantities as the Representatives may reasonably request.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it becomes shall be necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Rules and Regulationsrules thereunder, the Company promptly will so (i) notify the Broker-Dealer and, subject to Section 3(aRepresentatives of any such event; (ii) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of Section 6(a) hereof, an amendment or supplement to the Prospectus which that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnishnot make any offer relating to the Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act.
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Broker-Dealer Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or on dealer may be required by the Act (including in circumstances where such Broker-Dealer's orderrequirement may be satisfied pursuant to Rule 172), at such places as such Broker-Dealer may designate, many copies of each Preliminary Prospectus, the Registration Statement Prospectus and any pre-effective or post-effective amendments supplement thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the Offering.
(fg) Neither The Company will arrange, if necessary, for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Offered Securities; provided that in no event shall the Company nor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of its officers process in suits, other than those arising out of the offering or directorssale of the Offered Securities, nor its affiliates in any jurisdiction where it is not now so subject.
(h) The Company will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Rules Exchange Act with respect to, any other Units, shares of Common Stock, Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock or publicly announce an intention to effect any such transaction during the period commencing on the date hereof and Regulations)ending 180 days after the date of this Agreement; provided, however, that the foregoing shall not apply to the forfeiture of a portion of the Founder Shares pursuant to their terms or any transfer of Founder Shares to any current or future independent director of the Company (provided that such current or future independent director transferee shall be subject to the terms of the Insider Letters at the time of such transfer; and provided further that to the extent any Section 16 reporting obligation is triggered as a result of such transfer, such Section 16 filing shall include a practical explanation as to the nature of the transfer) and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Optional Securities on exercise of the Option, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with an initial Business Combination, or (y) release the Sponsor or any officer or director from the 180-day lock-up contained in the Insider Letters.
(i) The Company will not take, directly or indirectly, any action designed to, to or which that would constitute or that might in the future reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Offered Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Offered Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Offered Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Offered Securities; (iv) the printing (or reproduction) and delivery of this Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Offered Securities under the Exchange Act and the listing of the Offered Securities on the New York Stock Exchange; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Offered Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA (including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Offered Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including U.S. and any local counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(gk) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, shares of Common Stock and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of an initial Business Combination. During such period, the Company will not deregister the Units, shares of Common Stock or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of an initial Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall furnishpromptly, but not later than four Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Current Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or cause any portion of the Option, the Company shall promptly, but not later than four Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Optional Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K referenced in the immediately prior sentence.
(m) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be furnishedpublicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Quarterly Reports on Form 10-Q and the mailing, if any, of quarterly financial information to stockholders.
(n) For a period commencing on the Effective Date and ending five years from the date of the consummation of the Business Combination or make availableuntil such earlier time at which the Liquidation occurs, or cause to be made availablethe Company shall, to the Broker-Dealer during extent such information or documents are not otherwise publicly available, upon written request from the Offering Period Representatives, furnish to the Representatives copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities in their capacities as such; and (ii) such additional documents and information regarding with respect to the Company and its the affairs of any future subsidiaries of the Company as the Broker-Dealer Representatives may from time to time reasonably request, including any all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and all documentation reasonably requested regarding information special reports or other additional documents referred to in the Registration Statement preceding sentence filed or furnished on the Commission’s XXXXX website will be considered furnished for the purposes of this Section 6.
(o) For a period commencing on the Effective Date and ending five years from the Prospectus and in order to evidence the accuracy or completeness of any date of the conditions contained in this Agreementconsummation of the Business Combination or until such earlier time at which the Liquidation occurs or the shares of Common Stock and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
Appears in 3 contracts
Samples: Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade Acquisition Corp), Underwriting Agreement (Cascade Acquisition Corp)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company It will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file prepare the Prospectus in a form approved by you and any amendment or supplement thereto with the SEC in the manner and within the time period required by to file such Prospectus pursuant to Rule 424(b) under the Act. During Securities Act not later than the Commission’s close of business on the second business day following the date of this Agreement; to make no further amendment or any time when a prospectus relating supplement to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amendedor the Prospectus prior to the Closing Date that 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 become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely a description of the Offered Securities, in accordance a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with said the Commission pursuant to Rule 430A 433(d) under the Securities Act; to file promptly all reports and when any post-effective amendment 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 Registration Statement becomes effective; (B) date of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and for so long as the delivery of a prospectus (or for additional informationin lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Offered Securities; or (C) to advise you, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Offered Securities, of the suspension of the qualification of the Offered 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 any amendment or supplement thereto or for additional information; and, in the institution or threat event of the issuance of any investigation stop order or proceeding for that purposeof any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, and will to promptly use its best efforts to prevent obtain the issuance withdrawal of such order; and in the event of any such order andissuance of a notice of objection, if issuedpromptly to take such steps including, to obtain without limitation, amending the lifting thereof as soon as possible.
(c) The Company will (A) take Registration Statement or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualifyfiling a new registration statement, where practicableat its own expense, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution permit offers and sales of the Notes, Offered Securities by the Underwriters (C) cause its counsel references herein to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company Registration Statement shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in include any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsamendment or new registration statement).
(db) The Company consents Prior to 10:00 A.M., New York City time, on the use 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 Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Offered Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act) is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time 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 Securities Act, the Exchange Act or the Rules Trust Indenture Act, to notify you and Regulations, the Company promptly will so notify the Broker-Dealer and, subject upon your request to Section 3(a) hereof, will file such document and to prepare and file with the SEC 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 amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which that will correct such statement or omission or effect such compliance; and in case any Underwriter is required under the Securities Act to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) in connection with sales of any of the Offered 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 Securities Act.
(c) To make generally available to its securityholders as soon as practicable, but in any event not later than 16 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations thereunder (including, at the option of the Company, Rule 158).
(d) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Underwriters designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Underwriters, provided that the Company will not be required to qualify as a foreign corporation, to file a general consent to service of process in any such jurisdiction or to take any other action that would subject the Company to service of process in any suits (other than those arising out of the offering of the Offered Securities) or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(e) The Company will furnish, without charge, pay all expenses incident to the Broker-Dealer or on performance of its obligations under this Agreement and the Mortgage, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale and determination of their eligibility for investment under the laws of such Broker-Dealer's orderjurisdictions as the Underwriters designate and the printing of memoranda relating thereto, at such places as such Broker-Dealer may designatefor the fees and expenses of the Trustee and its professional advisors, copies for all expenses in connection with the execution, issue, authentication, packaging and initial delivery of each Preliminary Prospectusthe Offered Securities, the Registration Statement preparation and any pre-effective or post-effective amendments thereto printing of this Agreement, the Offered Securities, the Disclosure Package and the Prospectus, any Issuer Free Writing Prospectus, and all amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities, for the cost of any advertising approved by the Company in each case connection with the issue of the Offered Securities, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees, and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus (including any amendments and supplements thereto) to the Underwriters. Except as soon as available otherwise provided in this Section 5(e) or in Section 9 of this Agreement, the Underwriters will pay all of their costs and in such quantities as expenses, including fees and expenses of their counsel, transfer taxes on the Broker-Dealer may reasonably requestresale of the Offered Securities and any advertising and travel expenses incurred by them.
(f) Neither In connection with the offering, until the earlier of (i) 180 days following the Closing Date and (ii) the date the Underwriters shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its officers affiliates has or directorswill, nor either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(within g) From the meaning date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Rules and Regulations)Representatives, will takeoffer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any action designed or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or which might in guaranteed by the future reasonably be expected to cause or result in, stabilization or manipulation Company and having a maturity of more than one year from the price date of any securities of the Companyissue.
(gh) 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.
(i) The Company shall furnish(i) represents and agrees that, or cause other than the final term sheet prepared and filed pursuant to be furnishedSection 5(a) hereof, or without the prior consent of the Representatives, it has not made and will not make available, or cause to be made available, any offer relating to the Broker-Dealer during Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Offering Period such additional documents Act and information regarding (ii) has complied and will comply with the Company and its affairs as requirements of Rule 433 under the Broker-Dealer may from time Act applicable to time reasonably requestany Issuer Free Writing Prospectus, including any timely filing with the Commission or retention where required and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreementlegending.
Appears in 3 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Pacificorp /Or/), Underwriting Agreement (Pacificorp /Or/)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that it will furnish to counsel for the Underwriters one signed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will use its best efforts file the Prospectus with the Commission pursuant to cause and in accordance with Rule 424(b) not later than the Registration Statement, if not effective at second business day following the time of execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and RegulationsAct, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment to the Registration Statement or Commission, at its own expense, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ 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 5 hereof.
(d) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary Prospectusthe Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as the Broker-Dealer Representatives may reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Neither The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall designate and will continue such qualifications in effect so long as required for the distribution, provided that the Company nor and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction.
(g) During the period of five years hereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its officers or directorsannual report to stockholders for such year; and the Company will furnish to the Representatives as soon as available, nor its affiliates (within the meaning a copy of each report and any definitive proxy statement of the Rules Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or mailed to stockholders.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement, for any filing fees and Regulations)other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectus, any preliminary prospectus supplement or any other amendments or supplements to the Prospectus to the Underwriters.
(i) The Company will takenot offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any action designed to, or which might in file with the future reasonably be expected Commission a registration statement under the Act relating to cause debt securities issued or result in, stabilization or manipulation of the price of any securities of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding guaranteed by the Company and its affairs as having a maturity of more than one year from the Broker-Dealer may from time date of issue, or publicly disclose the intention to time reasonably requestmake any such offer, including any and all documentation reasonably requested regarding information in sale, pledge, disposition or filing, without the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any prior written consent of the conditions contained in Representatives for a period beginning at the date of this AgreementAgreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives.
Appears in 3 contracts
Samples: Underwriting Agreement (Washington Mutual Inc), Underwriting Agreement (Washington Mutual Inc), Underwriting Agreement (Washington Mutual Inc)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts Prior to cause the Registration Statement, if not effective at termination of the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If requiredOffering, the Company will not file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment, supplement or Rule 462(b) Registration Statement to which the Representative reasonably objects. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the Offering, any amendment to the Registration Statement shall have been filed or become effective; , (Biii) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (Civ) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any the Preliminary Prospectus or Prospectus, the Prospectus or any amendment Written Testing-the-Waters Communication, or supplement thereto of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offering Securities for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain or the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer occurrence of any such special standards.
(d) The Company consents suspension or objection to the use of the Prospectus (Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and any using its best efforts to have such amendment or supplement theretonew registration statement declared or become effective as soon as practicable.
(b) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating prior to the Notes is required filing of the Prospectus pursuant to be delivered under the ActRule 424(b), any event or development occurs as a result of which the Prospectus, as then amended or supplemented, Statutory Prospectus would include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as the Representative may reasonably request.
(c) If, at any time when a prospectus relating to the Offering Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it becomes shall be necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Rules and Regulationsrules thereunder, the Company promptly will so (i) notify the Broker-Dealer and, subject to Section 3(aRepresentative of any such event; (ii) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (a) of this Section 6, an amendment or supplement to the Prospectus which that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented Prospectus to the Representative in such quantities as the Representative may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnishnot make any offer relating to the Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act.
(f) The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Broker-Dealer Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or on dealer may be required by the Act (including in circumstances where such Broker-Dealer's orderrequirement may be satisfied pursuant to Rule 172), at such places as such Broker-Dealer may designate, many copies of each Preliminary Prospectus, the Registration Statement Prospectus and any pre-effective or post-effective amendments supplement thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer Representative may reasonably request.
(f) Neither . The Company will pay the Company nor any expenses of its officers printing or directors, nor its affiliates (within other production of all documents relating to the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the CompanyOffering.
(g) The Company will arrange, if necessary, for the qualification of the Offering Securities for sale under the laws of such jurisdictions as the Representative may designate and will maintain such qualifications in effect so long as required for the distribution of the Offering Securities; provided that in no event shall furnishthe Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offering Securities, in any jurisdiction where it is not now so subject.
(h) During the period commencing at the Execution Time and ending one-hundred-eighty (180) days after such date, the Company will not, without the prior written consent of the Representative, (x) (i) offer, sell, contract to sell, pledge or grant any option to purchase or otherwise dispose of (or enter into any transaction that is designed to, or cause might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to be furnishedcash settlement or otherwise)), directly or indirectly, or make availableestablish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Units, Common Shares, Warrants or any securities convertible into, or cause exercisable or exchangeable for, Common Shares, (ii) enter into any swap or other arrangement that transfers to be made availableanother, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably requestin whole or in part, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained economic consequences of ownership of any Units, Common Shares, Warrants or any securities convertible into, or exercisable or exchangeable for, Common Shares owned by it, him or her, whether any such transaction is to be settled by delivery of such securities, in this Agreement.cash or otherwise, or (iii) or publicly announce an intention to effect any such transaction specified in clause (i) or (ii); provided, however, that the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Over-Allotment Securities upon the exercise of the option provided for in Section 3 hereof,
Appears in 2 contracts
Samples: Underwriting Agreement (Trajectory Alpha Acquisition Corp.), Underwriting Agreement (Trajectory Alpha Acquisition Corp.)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows---------------------------------- several Underwriters that it will furnish to the Representatives one signed copy of the Registration Statement, including all exhibits, in the form in which it became effective and of all amendments thereto, and that, in connection with each offering of Securities:
(a) The Company will use its best efforts advise the Representatives promptly of any proposal to cause amend or supplement the Registration Statement, if not effective at Statement or the time of execution of this Agreement, Prospectus and will afford the Representatives a reasonable opportunity to comment on any amendments thereto, to become effective as promptly as practicable. If required, such proposed amendment or supplement; and the Company will file also advise the Prospectus and Representatives promptly of the filing of any such amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made institution by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(cb) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and RegulationsAct, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or Commission an amendment or supplement to the Prospectus which will correct such statement or omission omissions or an amendment which will effect such compliance.
(ec) As soon as practicable after the date of each Terms Agreement, the Company will make generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the latest of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(d) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary Prospectusthe Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as are reasonably requested.
(e) The Company will arrange for the Broker-Dealer may reasonably requestqualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution.
(f) Neither The Company will pay all expenses incident to the Company nor any performance of its officers or directors, nor its affiliates obligations under this Agreement and will reimburse the Underwriters for any expenses (within the meaning including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Rules Registered Securities for sale and Regulations)determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, will take, directly or indirectlyand for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any action designed to, or which might in the future reasonably be expected preliminary prospectuses and any preliminary prospectus supplements to cause or result in, stabilization or manipulation of the price of any securities of the Companyunderwriters.
(g) The For a period beginning at the time of execution of the Terms Agreement and ending 30 days after the Closing Date, without the prior consent of the Representatives, the Company shall furnishwill not offer, sell, contract to sell or cause to be furnished, otherwise dispose of any United States dollar-denominated debt securities issued or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding guaranteed by the Company and its affairs as having a maturity of more than one year from the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness date of any of the conditions contained in this Agreementissue.
Appears in 2 contracts
Samples: Underwriting Agreement (Raytheon Co), Underwriting Agreement (Raytheon Co/)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that it will furnish to counsel for the Underwriters one signed copy of the registration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Registered Securities:
(a) The Company will use its best efforts timely file the Prospectus with the Commission pursuant to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, Rule 424(b); the Company will file the Prospectus and advise you promptly of any amendment or supplement thereto with the SEC in the manner and within the time period required by such filing pursuant to Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, ); the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing and effectiveness of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its reasonable best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued.
(b) If the Securities specified in the Terms Agreement are Debt Securities, the Company will prepare a final term sheet, containing a description of the Registered Securities, in a form approved by the Representatives, and file such term sheet pursuant to obtain Rule 433(d) under the lifting thereof as soon as possibleAct within the time period prescribed by such Rule.
(c) The Company will (A) take file promptly all reports and any definitive proxy or cause information statements required to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as filed by the Company may agreewith the Commission pursuant to Section 13(a), (B13(c), 14 or 15(d) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents Exchange Act subsequent to the use date of the Prospectus for so long as the delivery of a prospectus (and any amendment or supplement theretoin lieu thereof, the notice referred to in Rule 173(a) by under the Broker-Dealer, Act) is required in connection with the offering or sale of the Notes Securities.
(d) The Company will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and for legending requirements applicable to each such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. Issuer Free Writing Prospectus.
(e) If, at any time when a prospectus relating to the Notes Securities is required to be delivered under the Act (or in lieu thereof, the notice referred to in Rule 173(a) under the Act), any event occurs in the reasonable judgment of the Representatives or the Company as a result of which the Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus, ) or the Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Registration Statement, the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, if applicable, the Company will promptly notify the Representatives and will prepare and file with the Commission, subject to Section 4(a) herein, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. The Company will not, without the prior consent of the Representatives, (i) make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act, except for any Issuer Free Writing Prospectus set forth in Schedule B to the related Terms Agreement, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Act with respect to the Offering or the Securities other than as set forth in Schedule B to the applicable Terms Agreement. The Company consents to the use by any Underwriter of any free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering and that is included in any Preliminary Prospectus, (ii) in the case of an offering of Debt Securities, information that describes the final terms of the Securities or their offering and that is included in the term sheet of the Company contemplated in Section (4)(b) of this Agreement or (iii) information permitted by Rule 134 under the Act. Notwithstanding any of the foregoing to the contrary, except pursuant to Section 4(f) hereof, no Underwriter shall include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Company where the use or reference to such free writing prospectus would require the filing of such “issuer information” with the Commission pursuant to Rule 433(d) due to the Underwriters’ inclusion of such “issuer information” in any “free writing prospectus”.
(f) If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Representatives or the Company, conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus as then amended or supplemented, or would, in the judgment of the Representatives or the Company, include, when taken together with the Pricing Disclosure Package, an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Act or the Rules and RegulationsRegulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company promptly will so notify the Broker-Dealer Representatives promptly and, subject to Section 3(a) hereofif requested by the Representatives, will prepare and file with the SEC furnish without charge to each Underwriter an amendment to the Registration Statement or an appropriate amendment or supplement (in form and substance reasonably satisfactory to the Prospectus which Representatives) that will correct such statement statement, omission or omission conflict or effect such compliance.
(eg) As soon as practicable after the date of each Terms Agreement, but in no event later than twelve months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), the Company will make generally available to its security holders an earning statement which will satisfy the provisions of Section 11(a) of the Act.
(h) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each the Registration Statement, including all exhibits, any Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and any Issuer Free Writing Prospectus, all amendments and supplements theretoto such documents, and all documents incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Prospectus, in each case as soon as available and in such quantities as are reasonably requested.
(i) The Company will arrange for the Broker-Dealer qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation, to execute a general consent to service of process or to subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(j) During the period, if any, specified in the Terms Agreement after the date of such Terms Agreement or for such shorter period as the Securities remain outstanding, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(f) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(gk) The Company shall furnishwill pay the costs incident to the authorization, or cause issuance, sale and delivery of the Securities to be furnished, or make available, or cause to be made available, sold by the Company to the Broker-Dealer during Underwriters and any taxes payable in that connection; the Offering Period such additional documents costs incident to the preparation, printing and information regarding filing under the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in Act of the Registration Statement and any amendments and exhibits thereto; the costs incident to the preparation, printing and filing of any document and any amendments and exhibits thereto required to be filed by the Company under the Exchange Act; the cost of distributing the Registration Statement to the Underwriters as originally filed and each amendment thereto, each post-effective amendment thereof (including exhibits), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements to or any documents incorporated by reference in order to evidence the accuracy or completeness of any of the conditions contained foregoing documents as provided in this Agreement; the costs of filing with the Financial Industry Regulatory Authority, Inc., if necessary; the fees and expenses of qualifying the Securities under the securities laws of the several jurisdictions as provided in this subsection and of preparing a Blue Sky memorandum and a memorandum concerning the legality of the Securities as an investment (including fees of counsel to the Underwriters in connection therewith); the costs of printing and issuance of certificates; any transfer agent’s fees; the costs of preparation, printing and filing of any Indenture and any Trustees’ fees and expenses; and all other costs and expenses incident to the performance of the obligations of the Company under this Agreement, provided that, except as provided in this subsection and Section 8, the Underwriters shall pay their own costs and expenses, including the fees and expenses of their counsel, any transfer taxes on the Securities which they may sell, the expenses of advertising any offering of the Securities made by the Underwriters and the cost of printing any Agreement among Underwriters, provided, further, that after nine months from the date of the Terms Agreement, the Underwriters shall pay the costs of printing any additional Registration Statements or Prospectuses, or any amendments or supplements thereto, required for their own use.
(l) Without the prior consent of the Representatives, the Company will not, (A) in the event of an offering of common stock, preferred stock or convertible debt securities, offer, sell, contract to sell or otherwise dispose of any shares of common stock or any securities convertible into or exchangeable or exercisable for or any rights to purchase or acquire common stock for that period specified in the Terms Agreement, other than shares of common stock or options to purchase common stock granted under the Company’s employee benefit plans and, (B) for a period beginning at the time of execution of the Terms Agreement and ending on the Closing Date, in the event of an offering of Debt Securities, will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company with maturities longer than one year, other than (i) the Debt Securities to the Underwriters or the Contract Securities; (ii) borrowings in the ordinary course of business; and (iii) other borrowings in an aggregate principal amount not to exceed $100 million.
(m) The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Pricing Prospectus and the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Unisys Corp), Underwriting Agreement (Unisys Corp)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file To prepare the Prospectus in a form approved by KBCM and any amendment or supplement thereto with the SEC in the manner and within the time period required by to file such Prospectus pursuant to Rule 424(b) under the Act. During Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise KBCM, promptly after it receives notice thereof, of the time when a prospectus relating any amendment or supplement to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Registration Statement or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance and to furnish KBCM with said Rule 430A and when any post-effective amendment copies thereof; to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statementadvise KBCM, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to KBCM and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to KBCM such number of the following documents as KBCM shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Securities or any other securities relating thereto and if at such time any 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 to amend or supplement the Prospectus in order to comply with the Securities Act, to notify KBCM and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as KBCM may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or KBCM, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus or any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to KBCM and counsel for the Underwriters and obtain the consent of KBCM to the filing, which consent will not be unreasonably withheld;
(f) Not to make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of KBCM;
(g) To retain in accordance with the Securities Act Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Securities Act Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required material fact necessary in order to qualifymake the statements therein, where practicablein the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify KBCM and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as KBCM may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(h) As soon as practicable after the Notes Effective Date (it being understood that the Company shall have until at least 410 or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to deliver to KBCM an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Securities Act Regulations (including, at the option of the Company, Rule 158);
(i) Promptly from time to time to take such action as KBCM may reasonably request to qualify the Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions as KBCM may request and to comply with such laws so as to permit the Company may agree, (B) continue continuance of sales and dealings therein in such qualifications in effect jurisdictions for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)Securities; PROVIDED, HOWEVERprovided, that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation or in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers jurisdiction or (iii) subject itself to taxation in some jurisdictions any jurisdiction in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.which it would not otherwise be subject;
(dj) The Company consents to For a period commencing on the use date hereof and ending on the 90th day after the date of the Prospectus (and the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any amendment transaction or supplement thereto) device that is designed to, or could be expected to, result in the disposition by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, any person at any time when a prospectus relating in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Securities), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than options or rights granted or sold pursuant to the Notes terms of the Company’s 2007 Long-Term Incentive Plan (the “LTIP”), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is required to be delivered under settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the Actregistration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any event occurs as a result other securities of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify or (4) publicly disclose the Broker-Dealer and, subject intention to Section 3(a) hereof, will prepare and file with do any of the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements theretoforegoing, in each case as soon as available without the prior written consent of KBCM, on behalf of the Underwriters, and to cause each officer and director of the Company set forth on Exhibit D hereto to furnish to KBCM, prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit C hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless KBCM, on behalf of the Underwriters, waives such quantities as the Broker-Dealer may reasonably request.extension in writing;
(fk) Neither To apply the net proceeds from the sale of the Securities being sold by the Company nor any of its officers or directors, nor its affiliates (within the meaning as set forth in each of the Rules most recent Preliminary Prospectus and Regulations)the Prospectus under the caption “Use of Proceeds;”
(l) To use its best efforts to list, will subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the Nasdaq all documents and notices required in connection therewith;
(m) To engage and maintain, at its expense, a registrar and transfer agent for the Securities;
(n) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, prior to termination of the underwriting syndicate contemplated by this Agreement, (i) take, directly or indirectly, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.; and
(go) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to To comply with all of the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including provisions of any and all documentation reasonably requested regarding information undertakings in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementStatement.
Appears in 2 contracts
Samples: Underwriting Agreement (Rex Energy Corp), Underwriting Agreement (Rex Energy Corp)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company It will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file prepare the Prospectus in a form approved by you and any amendment or supplement thereto with the SEC in the manner and within the time period required by to file such Prospectus pursuant to Rule 424(b) under the Act. During Securities Act not later than the Commission's close of business on the second business day following the date of this Agreement; to make no further amendment or any time when a prospectus relating supplement to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amendedor the Prospectus prior to the Closing Date that 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 become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely a description of the Offered Securities, in accordance a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with said the Commission pursuant to Rule 430A 433(d) under the Securities Act; to file promptly all reports and when any post-effective amendment 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 Registration Statement becomes effective; (B) date of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and for so long as the delivery of a prospectus (or for additional informationin lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Offered Securities; or (C) to advise you, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Offered Securities, of the suspension of the qualification of the Offered 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 any amendment or supplement thereto or for additional information; and, in the institution or threat event of the issuance of any investigation stop order or proceeding for that purposeof any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, and will to promptly use its best efforts to prevent obtain the issuance withdrawal of such order; and in the event of any such order andissuance of a notice of objection, if issuedpromptly to take such steps including, to obtain without limitation, amending the lifting thereof as soon as possible.
(c) The Company will (A) take Registration Statement or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualifyfiling a new registration statement, where practicableat its own expense, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution permit offers and sales of the Notes, Offered Securities by the Underwriters (C) cause its counsel references herein to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company Registration Statement shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in include any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsamendment or new registration statement).
(db) The Company consents Prior to 10:00 a.m., New York City time, on the use 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 Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Offered Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act) is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time 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 Securities Act, the Exchange Act or the Rules Trust Indenture Act, to notify you and Regulations, the Company promptly will so notify the Broker-Dealer and, subject upon your request to Section 3(a) hereof, will file such document and to prepare and file with the SEC 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 amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which that 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 Securities Act) in connection with sales of any of the Offered 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 Securities Act.
(c) To make generally available to its securityholders as soon as practicable, but in any event not later than 16 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations thereunder (including, at the option of the Company, Rule 158);
(d) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Underwriters designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Underwriters, provided that the Company will not be required to qualify as a foreign corporation, to file a general consent to service of process in any such jurisdiction or to take any other action that would subject the Company to service of process in any suits (other than those arising out of the offering of the Offered Securities) or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(e) The Company will furnish, without charge, pay all expenses incident to the Broker-Dealer or on performance of its obligations under this Agreement and the Mortgage, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale and determination of their eligibility for investment under the laws of such Broker-Dealer's orderjurisdictions as the Underwriters designate and the printing of memoranda relating thereto, at such places as such Broker-Dealer may designatefor the fees and expenses of the Trustee and its professional advisors, copies for all expenses in connection with the execution, issue, authentication, packaging and initial delivery of each Preliminary Prospectusthe Offered Securities, the Registration Statement preparation and any pre-effective or post-effective amendments thereto printing of this Agreement, the Offered Securities, the Disclosure Package and the Prospectus, any Issuer Free Writing Prospectus, and all amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities, for the cost of any advertising approved by the Company in each case connection with the issue of the Offered Securities, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees, and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus (including any amendments and supplements thereto) to the Underwriters. Except as soon as available otherwise provided in this Section 5(e) or in Section 9 of this Agreement, the Underwriters will pay all of their costs and in such quantities as expenses, including fees and expenses of their counsel, transfer taxes on the Broker-Dealer may reasonably requestresale of the Offered Securities and any advertising and travel expenses incurred by them.
(f) Neither In connection with the offering, until the earlier of (i) 180 days following the Closing Date and (ii) the date the Underwriters shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its officers affiliates has or directorswill, nor either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(within g) From the meaning date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Rules and Regulations)Underwriters, will takeoffer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any action designed or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or which might in guaranteed by the future reasonably be expected to cause or result in, stabilization or manipulation Company and having a maturity of more than one year from the price date of any securities of the Companyissue.
(gh) 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.
(i) The Company shall furnish(i) represents and agrees that, or cause other than the final term sheet prepared and filed pursuant to be furnishedSection 5(a) hereof, or without the prior consent of the Underwriters, it has not made and will not make available, or cause to be made available, any offer relating to the Broker-Dealer during Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Offering Period such additional documents Act and information regarding (ii) has complied and will comply with the Company and its affairs as requirements of Rule 433 under the Broker-Dealer may from time Act applicable to time reasonably requestany Issuer Free Writing Prospectus, including any timely filing with the Commission or retention where required and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreementlegending.
Appears in 2 contracts
Samples: Underwriting Agreement (Pacificorp /Or/), Underwriting Agreement (Pacificorp /Or/)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or thereafter during such period as the Prospectus is required by law to be delivered in connection with sales of the Shares by an Underwriter or dealer, file any amendment or supplement to the Registration Statement or the Prospectus, unless a copy thereof shall first have been submitted to the Representatives and made available to the Underwriters within a reasonable period of time prior to the filing thereof and the Underwriters shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this AgreementStatement to become effective, and any amendments theretowill notify you promptly, to become effective as promptly as practicable. If requiredand will confirm such advice in writing, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, Statement has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A effective and when any post-effective amendment thereto becomes effective, (B) of the filing of the Prospectus pursuant to Rule 424 or Rule 434 under the Act, (C) of any request by the Commission for amendments or supplements to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or , (CD) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof, (E) of the happening of any event during the period mentioned in the second sentence of Section 5(e) hereof 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 (F) of receipt by the Company or any representatives or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of thereto, any Preliminary Prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to said Rule 430A and to notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, copies of the executed signature pages of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, and such number of conformed copies of the Registration Statement, with or without exhibits, and any supplement or amendment thereto, as the Representatives shall reasonably request.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) Prior to the Effective Date, and thereafter from time to time, the Company will deliver to the Representatives, without charge, as many copies of the Preliminary Prospectus and the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company Representatives may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdictionreasonably request. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Preliminary Prospectus (and the Prospectus, or any amendment or supplement thereto) , by the Broker-DealerUnderwriters and by all dealers to whom the Shares may be sold, both in connection with the initial offering or sale of the Notes Shares and for such any period of time thereafter as during which the Prospectus is required by law to be delivered in connection therewith. If, at any If during such period of time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result shall occur which in the judgment of which the Prospectus, as then amended Company or supplemented, would include any untrue statement of a material fact the Underwriters' counsel should be set forth in the Preliminary Prospectus or omit to state a material fact necessary the Prospectus to make any statement therein, in the statements therein light of the circumstances under which it was made, not misleading, or if it becomes is necessary at any time to supplement or amend the Preliminary Prospectus or supplement the Prospectus to comply with law, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and will deliver to the Representatives, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) Prior to any public offering of the Shares by the Underwriters, the Company will cooperate with the Underwriters and the Underwriters' counsel in connection with the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably request; provided, that in no event shall the Company be obligated to qualify to do business as a foreign corporation in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and make available to the Underwriters, upon request, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and make available to the Underwriters, upon request, a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Act or (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company promptly will so notify pay, or reimburse if paid by the Broker-Dealer andUnderwriters, subject all costs and expenses incident to Section 3(athe performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to (A) hereofthe preparation, will prepare printing and file with filing of the SEC an Registration Statement and exhibits thereto, each Preliminary Prospectus, the Prospectus and any amendment or supplement to the Registration Statement or an amendment or supplement to the Prospectus, (B) the preparation and delivery of certificates representing the Shares, (C) the printing of this Agreement and any Agreement Among Underwriters and Selected Dealer Agreements, (D) furnishing (including costs of shipping and mailing) such copies of the Registration Statement, the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Preliminary Prospectus, and all amendments and supplements thereto, as may be requested for use in each case as soon as available connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (E) the quotation of the Shares on the Nasdaq National Market, (F) any filing fees required to be paid to the NASD, (G) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions designated pursuant to Section 5(f) hereof, including the fees, disbursements and other charges of your counsel in such quantities as connection therewith, and the Broker-Dealer may reasonably requestpreparation and printing of preliminary, supplemental and final Blue Sky memoranda, (H) counsel to and accountants for the Company and (I) the transfer agent for the Shares.
(fj) Neither If for any reason the Company nor any of shall fail to or shall be unable to perform its officers or directorsobligations hereunder, nor its affiliates the Company will reimburse the Underwriters for all out-of-pocket expenses (within including the meaning fees, disbursements and other charges of the Rules and Regulations), Underwriters' counsel) reasonably incurred by the Underwriters in connection herewith.
(k) The Company will takenot at any time, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected expected, to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(m) During the period of 180 days commencing at the Closing Date, the Company will not, without the Representatives' prior written consent, grant options or warrants to purchase shares of Common Stock at a price less than the initial public offering price or issue any securities convertible into shares of Common Stock at a conversion price less than the initial public offering price, other than as may occur under the terms of the Company's stock plans as described in the Prospectus.
(gn) The Company will not, and will cause each of its executive officers, directors and each beneficial owner of more than 5% of the outstanding shares of Common Stock (if any) to enter into agreements with the Underwriters to the effect that they will not, prior to the Effective Date and for a period of 180 days after the Effective Date, without the Representatives' prior written consent, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares (other than pursuant to employee stock option plans or in connection with other employee incentive compensation arrangements).
(o) The Company will not change or terminate the appointment of First Union National Bank of North Carolina as transfer agent for the Shares for a period of one year from the Effective Date without first obtaining the Representatives' written consent, which shall furnishnot be unreasonably withheld.
(p) The Company will use all reasonable efforts to comply with, or cause to be furnishedcomplied with, or make available, or cause to be made available, the conditions precedent to the Broker-Dealer during several obligations of the Offering Period Underwriters in Section 7 hereof.
(q) The Company agrees to file with the Commission all required reports on Form SR in accordance with the provisions of Rule 463 promulgated under the Act and to provide a copy of such additional documents and information regarding reports to the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement Representatives and the Prospectus Underwriters' counsel.
(r) The Company shall register the Common Stock under the Exchange Act and in order shall use its best efforts to evidence the accuracy or completeness of any of the conditions contained in this Agreementmaintain such registration for so long as such registration shall be required.
Appears in 2 contracts
Samples: Underwriting Agreement (Ridgeview Inc), Underwriting Agreement (Ridgeview Inc)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer Underwriters as follows:
(a) The Company will use its best efforts not, either prior to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective Effective Date or thereafter during such period as promptly as practicable. If required, the Company will file the Prospectus and is required by law to be delivered in connection with sales of the Shares by an Underwriter or dealer, file any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Registration Statement or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplementedunless a copy thereof shall first have been submitted to the Representatives and made available to the Underwriters within a reasonable period of time prior to the filing thereof and the Underwriters shall not have objected thereto in good faith.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise notify the Broker-Dealer Representatives promptly, and will confirm such advice in writing, (A) when of the Registration Statementreceipt of any comments of, as amendedor requests for additional or supplemental information from, has become effective; if the provisions Commission, (B) of the filing of the Prospectus pursuant to Rule 430A promulgated 424 or Rule 434 under the Act will be relied uponSecurities Act, when (C) of the Prospectus has been filed in accordance with said Rule 430A time and when date that any post-effective amendment to the Registration Statement becomes effective; , (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (CD) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof, (E) of the happening of any event during the Prospectus Delivery Period that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make any such statements made therein, in light of the circumstances in which they are made, not misleading and (F) of receipt by the Company or any representatives or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of thereto, any Preliminary Prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rules 424(b), 430A and 434, as applicable, and will notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, copies of the executed signature pages of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, and such number of conformed copies of the Registration Statement, with or without exhibits, and any supplement or amendment thereto, as the Representatives shall reasonably request.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) Prior to the Effective Date, and thereafter during the Prospectus Delivery Period, the Company will deliver to the Representatives, without charge, as many copies of the Preliminary Prospectus and the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company Representatives may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdictionreasonably request. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Preliminary Prospectus (and the Prospectus, or any amendment or supplement thereto) , by the Broker-DealerUnderwriters and by all dealers to whom the Shares may be sold, both in connection with the initial offering or sale of the Notes Shares and for any period of time thereafter during the Prospectus Delivery Period. If during such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs shall occur, as a result of which the Preliminary Prospectus or the Prospectus, as then amended or supplemented, would include any an untrue statement of a material fact or omit to state a material fact necessary in order to make any statement therein, in the statements therein light of the circumstances under which it was made, not misleading, or if it becomes is necessary at any time to supplement or amend the Preliminary Prospectus or supplement the Prospectus to comply with the Act or the Rules and Regulationslaw, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Representatives, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Shares for sale under (or obtain exemptions from the application of) state securities or blue sky laws and Canadian provincial securities laws of those jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and make available to the Underwriters, upon request, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and make available to the Underwriters, upon request, a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Securities Act.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to (A) the preparation, printing and filing of the Registration Statement and exhibits thereto, each Preliminary Prospectus, the Prospectus and any amendment or supplement to the Registration Statement or an amendment or supplement to the Prospectus, (B) the preparation and delivery of certificates representing the Shares, (C) the printing of this Agreement and any and all ancillary underwriting documents, (D) furnishing (including costs of shipping and distributing) such copies of the Registration Statement, the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Preliminary Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (E) all fees and expenses associated with filing to list and listing Shares on the Nasdaq National Market, (F) the filing fees incident to the NASD's review and approval of the Underwriters participation in the offering and the distribution of the Shares, (G) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of each case as soon as available state and the provincial securities laws of Canada, (H) the fees and disbursements of counsel for the Underwriters in such quantities as connection with state Blue Sky and NASD filings (to a maximum of $12,500), (I) the Broker-Dealer may reasonably requestfees and expenses of the Company's counsel, accountants and other advisors, (J) the transfer agent for the Shares, (K) all necessary issue and transfer and other stamp taxes in connection with the issuance and sale of the Shares to the Underwriters, and (L) any and all travel, lodging and informational meeting expenses for Company personnel associated with the IPO and the selling process.
(fj) Neither The Company further agrees that, in addition to the costs and expenses payable pursuant to subsection (i) of this Section 4, it will pay to the Underwriters on the Closing Date by certified or bank cashiers check or, at the election of the Underwriters, by deduction from the proceeds of the offering contemplated herein a non-accountable expense allowance equal to one and one-half percent (1.5%) of the aggregate price to the public of the Firm Shares, none of which has been paid to date. In the event the Underwriters elect to exercise the over-allotment option described in Section 1(b) hereof, the Company nor any agrees to pay to the Underwriters on the Option Closing Date (by certified or bank cashiers check or, at the Representative's election, by deduction from the proceeds of the offering) a non-accountable expense allowance equal to one and one-half percent (1.5%) of the aggregate price to the public of the Option Shares.
(k) If Cruttenden Xxxx is ready, willing and able to effectuate the offering of the Common Stock as described in the Prospectus, but the Company elects not to reasonably proceed, the Company will reimburse Cruttenden Xxxx for up to $100,000 of its officers or directorsout-of pocket expenses, nor its affiliates (within the meaning including up to $75,000 of the Rules fees and Regulations), expenses of its counsel.
(l) The Company will takenot at any time, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected expected, to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of any of the Shares.
(m) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(n) During the period of 180 days commencing at the Closing Date, the Company will not, without the Representatives' prior written consent, grant options or warrants to purchase shares of Common Stock at a price less than the fair market value price or issue any securities convertible into shares of Common Stock at a conversion price less than the fair market value price or grant any stock purchase rights at a price less than such price designated in the Company's stock purchase plan as in effect as of the date of this Agreement, other than as may occur under the terms of the Company's employee and director stock option and stock purchase plans as described in the Prospectus.
(go) The Company shall furnishwill not, and will cause each of its existing record and beneficial holders of Common Stock to enter into agreements with the Underwriters to the effect that they will not for a period of 180 days after the Effective Date, without the prior written consent of Cruttenden Xxxx Incorporated, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares (other than sales by the Company pursuant to employee and director stock option and stock purchase plans or other employee incentive compensation arrangements or in connection with the acquisition by the Company or its subsidiaries of technologies, product lines or businesses); provided that the recipients of shares in connection with a bona fide acquisition describe above agree in writing that they will not sell, contract to sell or otherwise dispose of any such shares of Common Stock for a period of 180 days after the Effective Date.
(p) The Company will use all reasonable efforts to comply with, or cause to be furnishedcomplied with, or make available, or cause to be made available, the conditions precedent to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any several obligations of the conditions contained Underwriters in this AgreementSection 5 hereof.
(q) The Company shall register the Common Stock under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and shall use its best efforts to maintain such registration for so long as such registration shall be required.
Appears in 2 contracts
Samples: Underwriting Agreement (Troy Group Inc), Underwriting Agreement (Troy Group Inc)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that it will furnish to counsel for the Underwriters one signed copy of the registration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Registered Securities:
(a) The Company will use its best efforts timely file the Prospectus with the Commission pursuant to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, Rule 424(b); the Company will file the Prospectus and advise you promptly of any amendment or supplement thereto with the SEC in the manner and within the time period required by such filing pursuant to Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, ); the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing and effectiveness of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its reasonable best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued.
(b) If the Securities specified in the Terms Agreement are Debt Securities, the Company will prepare a final term sheet, containing a description of the Registered Securities, in a form approved by the Representatives, and file such term sheet pursuant to obtain Rule 433(d) under the lifting thereof as soon as possibleAct within the time period prescribed by such Rule.
(c) The Company will (A) take file promptly all reports and any definitive proxy or cause information statements required to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as filed by the Company may agreewith the Commission pursuant to Section 13(a), (B13(c), 14 or 15(d) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents Exchange Act subsequent to the use date of the Prospectus for so long as the delivery of a prospectus (and any amendment or supplement theretoin lieu thereof, the notice referred to in Rule 173(a) by under the Broker-Dealer, Act) is required in connection with the offering or sale of the Notes Securities.
(d) The Company will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and for legending requirements applicable to each such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. Issuer Free Writing Prospectus.
(e) If, at any time when a prospectus relating to the Notes Securities is required to be delivered under the Act (or in lieu thereof, the notice referred to in Rule 173(a) under the Act), any event occurs in the reasonable judgment of the Representatives or the Company as a result of which the Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus, ) or the Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Registration Statement, the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, if applicable, the Company will promptly notify the Representatives and will prepare and file with the Commission, subject to Section 4(a) herein, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. The Company will not, without the prior consent of the Representatives, (A) make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act, except for any Issuer Free Writing Prospectus set forth in Schedule B to the related Terms Agreement, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Act with respect to the Offering or the Securities other than as set forth in Schedule B to the applicable Terms Agreement. The Company consents to the use by any Underwriter of any free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering and that is included in any Preliminary Prospectus, (ii) in the case of an offering of Debt Securities, information that describes the final terms of the Securities or their offering and that is included in the term sheet of the Company contemplated in Section (4)(b) of this Agreement or (iii) information permitted by Rule 134 under the Act. Notwithstanding any of the foregoing to the contrary, except pursuant to Section 4(f) hereof, no Underwriter shall include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Company where the use or reference to such free writing prospectus would require the filing of such “issuer information” with the Commission pursuant to Rule 433(d) due to the Underwriters’ inclusion of such “issuer information” in any “free writing prospectus”.
(f) If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Representatives or the Company, conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus as then amended or supplemented, or would, in the judgment of the Representatives or the Company, include, when taken together with the Pricing Disclosure Package, an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Act or the Rules and RegulationsRegulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company promptly will so notify the Broker-Dealer Representatives promptly and, subject to Section 3(a) hereofif requested by the Representatives, will prepare and file with the SEC furnish without charge to each Underwriter an amendment to the Registration Statement or an appropriate amendment or supplement (in form and substance reasonably satisfactory to the Prospectus which Representatives) that will correct such statement statement, omission or omission conflict or effect such compliance.
(eg) As soon as practicable after the date of each Terms Agreement, but in no event later than twelve months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), the Company will make generally available to its security holders an earning statement which will satisfy the provisions of Section 11(a) of the Act.
(h) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each the Registration Statement, including all exhibits, any Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and any Issuer Free Writing Prospectus, all amendments and supplements theretoto such documents, and all documents incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Prospectus, in each case as soon as available and in such quantities as are reasonably requested.
(i) The Company will arrange for the Broker-Dealer qualification of the Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications in effect so long as required for the distribution, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation, to execute a general consent to service of process or to subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(j) During the period, if any, specified in the Terms Agreement after the date of such Terms Agreement or for such shorter period as the Securities remain outstanding, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(f) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(gk) The Company shall furnishwill pay the costs incident to the authorization, or cause issuance, sale and delivery of the Securities to be furnished, or make available, or cause to be made available, sold by the Company to the Broker-Dealer during Underwriters and any taxes payable in that connection; the Offering Period such additional documents costs incident to the preparation, printing and information regarding filing under the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in Act of the Registration Statement and any amendments and exhibits thereto; the costs incident to the preparation, printing and filing of any document and any amendments and exhibits thereto required to be filed by the Company under the Exchange Act; the cost of distributing the Registration Statement to the Underwriters as originally filed and each amendment thereto, each post-effective amendment thereof (including exhibits), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements to or any documents incorporated by reference in order to evidence the accuracy or completeness of any of the conditions contained foregoing documents as provided in this Agreement; the costs of filing with the Financial Industry Regulatory Authority, Inc., if necessary; the fees and expenses of qualifying the Securities under the securities laws of the several jurisdictions as provided in this subsection and of preparing a Blue Sky memorandum and a memorandum concerning the legality of the Securities as an investment (including fees of counsel to the Underwriters in connection therewith); the costs of printing and issuance of certificates; any transfer agent’s fees; the costs of preparation, printing and filing of any Indenture and any Trustees’ fees and expenses; and all other costs and expenses incident to the performance of the obligations of the Company under this Agreement, provided that, except as provided in this subsection and Section 8, the Underwriters shall pay their own costs and expenses, including the fees and expenses of their counsel, any transfer taxes on the Securities which they may sell, the expenses of advertising any offering of the Securities made by the Underwriters and the cost of printing any Agreement among Underwriters, provided, further, that after nine months from the date of the Terms Agreement, the Underwriters shall pay the costs of printing any additional Registration Statements or Prospectuses, or any amendments or supplements thereto, required for their own use.
(l) Without the prior consent of the Representatives, the Company will not, (A) in the event of an offering of common stock, preferred stock or convertible debt securities, offer, sell, contract to sell or otherwise dispose of any shares of common stock or any securities convertible into or exchangeable or exercisable for or any rights to purchase or acquire common stock for that period specified in the Terms Agreement, other than shares of common stock or options to purchase common stock granted under the Company’s employee benefit plans and, (B) for a period beginning at the time of execution of the Terms Agreement and ending on the Closing Date, in the event of an offering of Debt Securities, will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company with maturities longer than one year, other than (i) the Debt Securities to the Underwriters or the Contract Securities; (ii) borrowings in the ordinary course of business; and (iii) other borrowings in an aggregate principal amount not to exceed $100 million.
(m) The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Pricing Prospectus and the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Unisys Corp), Underwriting Agreement (Unisys Corp)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that it will furnish to _____________, counsel for the Underwriters, one signed copy of the registration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner Commission pursuant to and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the provisions hereof Representatives, subparagraph (5)) not later than the second business day following the execution and delivery of the Prospectus, as then amended or supplementedTerms Agreement.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and RegulationsAct, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or Commission an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' 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 5.
(d) As soon as practicable following the issuance and sale of any of the Registered Securities, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will comply with the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary the Registration Statement, including all exhibits, any related Prospectus, any related preliminary prospectus supplement, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the Broker-Dealer qualification of the Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution.
(g) During the period of 5 years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year a copy of its annual report to stockholders for such year, and the Company will furnish to the Representatives (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(fh) Neither The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate pursuant to Section 4(f) hereof and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for fees charged by the National Association of Securities Dealers, Inc. and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters. It is understood, however, that, except as provided in this Section, Section 6 and Section 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
(i) For a period beginning at the time of execution of the Terms Agreement and ending 90 days after the Closing Date, without the prior consent of the Representatives, the Company nor any of its officers will not offer, sell, contract to sell or directors, nor its affiliates (within the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price otherwise dispose of any securities shares of capital stock of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Northrop Grumman Corp), Underwriting Agreement (Northrop Grumman Corp /De/)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Brokerseveral Underwriters that it will furnish to Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all post-Dealer as followseffective amendments thereto and that, in connection with each offering of Securities:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC Commission pursuant to and in the manner and within the time period required by accordance with Rule 424(b) under not later than the Act. During any time when a prospectus relating to second business day following the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act execution and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and delivery of the Prospectus, as then amended or supplementedTerms Agreement.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Registration Statement or the Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or Commission an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ 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 5.
(d) The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(e) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary Prospectusthe Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the Brokerqualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-Dealer K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Exchange Act, or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(fh) Neither The Company will pay all expenses incident to the Company nor any performance of its officers or directors, nor its affiliates obligations under this Agreement and each Terms Agreement and will reimburse the Underwriters for any expenses (within the meaning including fees and disbursements of counsel) incurred by them in connection with qualification of the Rules Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and Regulations)the printing of memoranda relating thereto, will take, directly or indirectlyfor any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any action designed to, or which might in the future reasonably be expected preliminary prospectuses and any preliminary prospectus supplements to cause or result in, stabilization or manipulation of the price of any securities of the CompanyUnderwriters.
(gi) The For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company shall furnishwill not, without the prior consent of the Representatives, offer, sell, contract to sell or cause otherwise dispose of any publicly sold (including pursuant to be furnished, Rule 144A of the Act) United States dollar-denominated debt securities issued or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding guaranteed by the Company and its affairs as having a maturity of more than one year from the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness date of any of the conditions contained in this Agreementissue.
Appears in 2 contracts
Samples: Underwriting Agreement (Pepsiamericas Inc/Il/), Underwriting Agreement (Pepsiamericas Inc/Il/)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause agrees with the Registration StatementUnderwriter that:
(i) If, if not effective at the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Offered Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective; . Prior to the termination of the offering of the Offered Shares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing;
(Bii) The Company will promptly advise the Underwriter (1) when the Final Prospectus shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Offered Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (C4) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (5) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Offered Shares for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possible.possible the withdrawal thereof;
(ciii) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Rules and Regulationsrespective rules thereunder, the Company promptly will so shall (A) notify the Broker-Dealer andUnderwriter of such event, subject to Section 3(a(B) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (i) of this Section 6(a), an amendment or supplement to the Prospectus which will shall correct such statement or omission or an amendment which shall effect such compliance.compliance and (C) supply any supplemented Prospectus to you in such quantities as you may reasonably request;
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Underwriter (to the extent unavailable on open-access public filing retrieval systems) an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(v) Upon your request, the Company shall furnish to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof), so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Prospectus and any amendments thereof and supplements thereto as the Underwriter may reasonably request. The Company shall pay the expenses of printing or other production of all documents relating to the offering of the Offered Shares;
(vi) The Company will furnisharrange, without chargeif necessary, to for the Broker-Dealer or on qualification of the Offered Shares for sale under the laws of such Broker-Dealer's order, at such places jurisdictions as such Broker-Dealer the Underwriter may designate, copies will maintain such qualifications in effect so long as required for the distribution of each Preliminary Prospectusthe Offered Shares and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Shares, in any jurisdiction where it is not now so subject;
(vii) On or before completion of this offering, the Registration Statement Company shall make all filings required under applicable securities laws and any pre-effective or post-effective amendments thereto by the New York Stock Exchange (including as required by the Exchange Act); and
(viii) The Company and the Partnerships will apply the net proceeds from the offering and sale of the Offered Shares in the manner set forth under "Use of Proceeds" in the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(fb) Neither For a period of 90 days after the date of the Prospectus Supplement (the "Lock-Up Period"), the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will takenot, directly or indirectly, any action designed to(1) offer, pledge, sell, or which might contract to sell any Common Shares, (2) sell any option or contract to sell any Common Shares, (3) purchase any option or contract to sell any Common Shares, (4) grant any option, right or warrant to purchase any Common Shares, (5) enter into any swap or other agreement that transfers, in whole or in part, the future reasonably be expected to cause or result in, stabilization or manipulation economic consequence of the price ownership of any securities of the Company.
(g) The Company shall furnish, Common Shares whether any such swap or cause transaction is to be furnishedsettled by delivery of shares or other securities, in cash or make availableotherwise, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of (6) take any of the conditions contained foregoing actions with respect to any securities convertible into or exchangeable or exercisable for or repayable with Common Shares, (7) file with the Commission a registration statement under the Act relating to any additional Common Shares or securities convertible into or exchangeable or exercisable for its Common Shares, or (8) publicly disclose the intention to take any of the foregoing actions, without the prior written consent of the Underwriter, except issuances of Common Shares or any securities convertible into or exchangeable or exercisable for or repayable with Common Shares (A) in this Agreement.connection with any acquisitions, joint ventures or similar arrangements, so long as the recipients of those shares agree not to sell or transfer those shares in a public market transaction during the Lock-Up Period, (B) upon the exercise of outstanding employee stock options, (C) and options pursuant to employee benefit plans, (D) pursuant to non-employee director or trustee stock plans,
Appears in 1 contract
Samples: Underwriting Agreement (Lexington Corporate Properties Trust)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsAgents that it will furnish to Cahill Gordon & Reindel, counsel for the Agents, one signed copy xx xxx Xxxxxtraxxxx Xtatement, including all exhibits and all documents incorporated by reference, in the form it became effective and of all amendments thereto and that, in connection with each offering of Notes, it will take the following actions:
(a) The From the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold (i) the Company will advise each Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus by means of a post-effective amendment, sticker, or supplement (except post-effective amendment, supplements, and stickers relating solely to interest rates or maturities of Notes) but not by means of incorporation of document(s) by reference into the Registration Statement or the Prospectus; (ii) the Company will afford the Agents a reasonable opportunity to comment on any such proposed post-effective amendment, sticker, or supplement; (iii) the Company will advise each Agent of the filing of any such post-effective amendment, sticker, or supplement; and (iv) the Company will (x) advise each Agent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, (y) use its best efforts to cause prevent the issuance of any such stop order, and (z) if a stop order is issued, to obtain its lifting as soon as possible.
(b) If from the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold, the Company shall determine that it is necessary to suspend solicitation of the Notes because of the occurrence of an event that results in the Prospectus either (x) including an untrue statement of a material fact or omitting to state any material fact necessary to make the statements in such Prospectus, in light of the circumstances under which they were made when such Prospectus was delivered, not misleading, or (y) failing to comply with the Act, then the Company will promptly notify each Agent to suspend solicitation of purchases of the Notes. Notwithstanding Section 4(a) if the Company shall determine to amend or supplement the Registration StatementStatement or Prospectus to correct such result, it will advise each Agent promptly and afford the Agents a reasonable opportunity to discuss and comment upon the nature of the disclosure in such amendment or supplement. Notwithstanding the foregoing, if not effective at the time of execution any notification to suspend solicitations (i) this Agreement shall be in effect and any Agent shall own any of the Notes with the intention of reselling them, or (ii) the Company has accepted an offer to purchase Notes but the related settlement has not occurred, then the Company, subject to the provisions of Section 4(a) of this Agreement, will promptly prepare and any amendments thereto, to become effective as promptly as practicable. If required, file with the Company will file the Prospectus and any Commission an amendment or supplement thereto with which will correct such statement or omission or effect such compliance.
(c) The Company, during the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, will furnish to each Agent promptly after timely filing with the Commission all documents required to be filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except those filings associated with employee benefit plans). The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance immediately notify each Agent of sales of or dealings any downgrading in the Notes in accordance with the provisions hereof and rating of the ProspectusNotes or any other debt securities of the Company, or any proposal to downgrade the rating of the Notes or any other debt securities of the Company, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), as then amended or supplemented.
(b) As soon as the Company is advised learns of such downgrading or obtains knowledge thereof, the proposal to downgrade.
(d) The Company will advise the Broker-Dealer (A) when furnish to each Agent copies of the Registration Statement, as amendedincluding all exhibits except those incorporated by reference, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied uponany related preliminary prospectus, when any related preliminary prospectus supplement, the Prospectus has been filed and all amendments and supplements to such documents, in accordance with said Rule 430A each case as soon as available and when any post-effective amendment to the Registration Statement becomes effective; in such quantities as are reasonably requested.
(Be) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and The Company will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualification of the Notes for offer sale and sale the determination of their eligibility for investment under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Agents designate and will continue such qualifications in effect for as so long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)distribution; PROVIDEDprovided, HOWEVERhowever, that the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited any consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment jurisdiction or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, any other requirements deemed by the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestbe unduly burdensome.
(f) Neither So long as any Notes are outstanding, the Company nor any will furnish to the Agents: (i) as soon as practicable after the end of each fiscal year, a copy of its officers annual report to shareholders for such year, (ii) as soon as available, a copy of each report or directors, nor its affiliates (within the meaning definitive proxy statement of the Rules Company filed with the Commission under the Exchange Act or mailed to shareholders, and Regulations)(iii) from time to time, will take, directly or indirectly, any action designed to, or which might in such other information concerning the future Company as you may reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companyrequest.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incident to the Brokerperformance of its obligations under this Agreement, and will reimburse each Agent for any expenses (including Blue Sky fees and disbursements of counsel which will not in the aggregate exceed $6,000) incurred by it in connection with qualification of the Notes for sale and determination of their eligibility for investment under the laws of such jurisdictions as such Agent may designate and the printing of memoranda relating thereto, for any filing fees charged by investment rating agencies for the rating of the Notes, for any filing fee of the National Association of Securities Dealers, Inc. relating to the Notes, and for the reasonable fees and disbursements of counsel to the Agents.
(h) Not later than 45 days after the end of the 12-Dealer during month period beginning at the Offering Period such additional documents and information regarding end of any fiscal quarter of the Company and in which the Closing Date or any other Representation Date occurs, the Company will make generally available to its affairs as security holders an earnings statement (which need not be audited) covering such 12-month period which will satisfy the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness provisions of any Section 11(a) of the conditions contained in this AgreementAct.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and To furnish all such information as may be reasonably required and otherwise to cooperate in order to qualify, where practicable, qualifying the Notes Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Company Representative may agree, (B) continue designate and to maintain such qualifications in effect for as long as may be necessary to complete requested by the Representative for the distribution of the NotesSecurities, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, provided that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standardsstate (except service of process with respect to the offering and sale of the Securities).
(db) The Company consents If, after the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the use Registration Statement to be declared effective before the offering of the Securities may commence, to endeavor to cause such post-effective amendment to become effective as soon as possible and to advise the Representative promptly and, if requested by the Representative, to confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus (including the information previously omitted from the Registration Statement pursuant to Rule 430B under the Securities Act) 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; during the period beginning on the date of this Agreement and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement (including any Rule 462(b) Registration Statement), any preliminary prospectus, the Time of Sale Prospectus or the Prospectus (and including any amendment or supplement theretothrough incorporation of any report filed under the Exchange Act) that shall be disapproved by the Broker-DealerRepresentative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time and date when any amendment to the Registration Statement (including any Rule 462(b) Registration Statement) has been filed or becomes effective or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been filed and to furnish the Representative with copies thereof; to file promptly and, in any event, within the time periods specified all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required in connection with the offering or sale of the Notes and Securities; to advise the Representative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any amendment thereto, any Rule 462(b) Registration Statement or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus, of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such period purpose, of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information, or of any proceedings to remove, suspend or terminate from listing the Securities from AMEX, or of the threatening or initiation of any proceedings for any of such purposes; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time thereafter as when the Prospectus is required by law not yet available to be delivered in connection therewith. If, at prospective purchasers and any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Time of Sale Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Time of Sale Prospectus is delivered, not misleadingmisleading or, or if for any other reason it becomes shall be necessary at any time to amend or supplement the Time of Sale Prospectus in order to comply with the Securities Act or the Rules rules and Regulationsregulations thereunder, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Time of Sale Prospectus or an amendment or a supplement to the Time of Sale Prospectus which that will correct such statement or omission or effect such compliance.
(e) The Company will furnishNo later than 12:00 p.m., without chargeNew York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Underwriters with written and electronic copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and Prospectus in such quantities as the Broker-Dealer Representative may reasonably requestrequest and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any 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 (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) 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 Securities Act, to notify the Representative and upon its request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representative may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities 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 the request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(f) Neither To make generally available to its securityholders via XXXXX within the required time periods after the effective date of the Registration Statement (as the term "effective date" is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company nor any and its consolidated subsidiaries (which need not be audited) complying with the provisions of its officers or directors, nor its affiliates (within the meaning Section 11(a) of the Rules Securities Act and Regulationsthe rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act).
(g) During the period beginning from the date of this Agreement and continuing to and including the date 90 days after the date of the Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of KeyBanc Capital Markets Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this Section 3(g) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement described in the Time of Sale Prospectus or the Prospectus.
(h) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via XXXXX to the Representative promptly after they become available copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. ("FINRA") or any national securities exchange on which the Common Stock is listed.
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified under the caption "Use of Proceeds" in the Time of Sale Prospectus and the Prospectus.
(j) To use its best efforts to list, subject to official notice of issuance, the Securities on AMEX prior to the First Delivery Date and to maintain such listing and to file with AMEX all documents and notices required in connection therewith.
(k) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(l) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gm) The Company To cause each person listed on Schedule C hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule B hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule C hereto shall be entitled to transfer and assign shares of Common Stock (1) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an "Entity"), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (2) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person's spouse or members of such person's immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule B hereto prior to time reasonably request, including any and such transfer.
(n) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(o) If the Company elects to rely upon Rule 462(b) under the Securities Act Regulations, to file a Rule 462(b) Registration Statement and with the Prospectus and Commission in order to evidence compliance with Rule 462(b) by 10:00 p.m., Eastern time, on the accuracy or completeness date of any of the conditions contained in this Agreement, and at the time of filing to 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 Regulations.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC Commission pursuant to and in the manner and within the time period required by accordance with subparagraph (2) of Rule 424(b) under the ActAct not later than the second business day following the execution and delivery of this Agreement) (or, if applicable, subparagraph (5)) and will file any Free Writing Prospectus pursuant to and in accordance with Rule 433 under the Act within the required time period. During The Company will advise the Representatives promptly of any time when a prospectus relating such filing pursuant to the Notes is required to be delivered Rule 424(b) or Rule 433 under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer Representatives promptly of any proposal to amend or supplement the Registration Statement, Time of Sale Information or the Prospectus and will not effect such amendment or supplement without the Representatives’ consent (A) when such consent not to be unreasonably withheld); and the Company will also advise the Representatives promptly of the effectiveness of any amendment or supplement of the Registration Statement, Time of Sale Information or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, as amendedit may be amended or supplemented, has become effective; if the provisions of Rule 430A promulgated proceeding under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) Section 8A of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purposeAct, and will use its reasonable best efforts to prevent the issuance of any such stop order andor objection and to obtain as soon as possible its lifting or withdrawal, if issued, to obtain the lifting thereof as soon as possible.
(c) The Before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, the Company will (A) take or cause furnish to be taken all such actions the Representatives and furnish all such information as may be reasonably required in order to qualify, where practicable, counsel for the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution Underwriters a copy of the Notesproposed Issuer Free Writing Prospectus, (C) cause its counsel amendment or supplement for review and will not prepare, use, authorize, approve, refer to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of Issuer Free Writing Prospectus or file any such special standardsproposed amendment or supplement to which the Representatives reasonably object.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Securities is required to be (or but for the exemption in Rule 172 under the Act would be required to be) delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the ProspectusTime of Sale Information, Prospectus or any Free Writing Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend the Time of Sale Information, Prospectus or supplement the any Free Writing Prospectus to comply with the Act or the Rules and RegulationsAct, the Company will promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment to Commission, at the Registration Statement or Company’s own expense, an amendment or supplement to the Prospectus which that will correct such statement or omission or an amendment that will effect such compliance. Neither the Representatives’ 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.
(e) As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its securityholders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the Effective Date that will satisfy the provisions of Section 11(a) of the Act. For the purpose of the preceding sentence, “Availability Date” means the 40th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the 60th day after the end of such fourth fiscal quarter.
(f) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of the Registration Statement (two of which will be signed and will include all exhibits), if requested by the Representatives, each related Preliminary Prospectus, and, so long as a prospectus relating to the Registration Statement and Securities is required to be delivered under the Act in connection with sales by any pre-effective Underwriter or post-effective amendments thereto and dealer, the Prospectus, Prospectus and all amendments and supplements theretoto such documents and each Free Writing Prospectus, in each case as soon as available and in such quantities as the Broker-Dealer may Representatives reasonably request.
(f) Neither . The Prospectus shall be so furnished as soon as practicable but in no event later than the second business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company nor any will pay the expenses of its officers or directors, nor its affiliates (within printing and distributing to the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the CompanyUnderwriters all such documents.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will cooperate with the Underwriters and counsel to the Broker-Dealer during Underwriters in connection with the Offering Period qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such additional documents jurisdictions as the Representatives designate and information regarding will continue such qualifications in effect so long as required for the distribution; 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 its affairs as the Broker-Dealer may from time transactions relating to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus, in any jurisdiction in which it is not now so subject.
(h) So long as any Securities remain outstanding, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of the annual report to stockholders for such year; and so long as any Securities remain outstanding, the Company will furnish to the Representatives (i) during any period in which the Company is not subject to Section 13 or 15(d) of the 1934 Act, as soon as practicable, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the 1934 Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(i) The Company will pay or cause to be paid all expenses incident to the performance of the obligations of the Company under this Agreement, including any filing fees and other expenses (including fees and disbursements of counsel to the Company) incurred in connection with qualification of the Securities for sale under the securities or blue sky laws of the various states, any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Securities and expenses incurred in distributing the Prospectus, any Free Writing Prospectus and in order any Time of Sale Information (including any amendments and supplements thereto) to evidence the accuracy or completeness of any Underwriters.
(j) The Company will not, without the prior written consent of the conditions contained X.X. Xxxxxx Securities LLC and Credit Suisse Securities (USA) LLC, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, until after 90 days from the date hereof, except for (i) the registration of the Securities and the sales to the Underwriters pursuant to this Agreement, (ii) the issuance of tangible equity units (and the shares of Common Stock issuable upon settlement thereof) in the Units Offering as described in the Time of Sale Information and the Prospectus, (iii) the issuance and sale of Common Stock or options exercisable into Common Stock pursuant to any employee benefit or incentive plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Time of Sale and (iv) the issuance of Common Stock upon the conversion of securities or the exercise of warrants outstanding at the Time of Sale.
(k) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement becomes effective; (B) to be declared effective before the offering of any request made the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the SEC Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act Regulations; during the period beginning on the date hereof and ending on the date, which in the opinion of counsel for amending the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration StatementStatement or Prospectus which shall be disapproved by the Representative promptly after reasonable notice thereof; to advise the Representative, for supplementing promptly after it receives notice thereof, of the time when any Preliminary Prospectus 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 the Representative with copies thereof; to file promptly, and in any event within the time periods specified, all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for additional informationso long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required in connection with the offering or sale of the Securities; or (C) to advise the Representative, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment other prospectus in respect of the Securities, of the suspension of the qualification of the Securities for offering or supplement thereto sale in any jurisdiction, of the initiation or the institution or threat threatening of any investigation or proceeding for that any such purpose, and will use its best efforts to prevent 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 the Prospectus or other prospectus or suspending any such order andqualification, if issued, promptly to use its reasonable best efforts to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus in such quantities as the Representative may reasonably request, and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act Regulations) is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) 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 request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders via EXXXX within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and any pre-effective or post-effective amendments thereto its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the ProspectusSecurities Act Regulations (including, and all amendments and supplements theretoat the option of the Company, in each case as soon as available and in such quantities as Rule 158 under the Broker-Dealer may reasonably requestSecurities Act).
(f) Neither During the Company nor any of its officers or directors, nor its affiliates (within period beginning from the meaning date hereof and continuing to and including the date 90 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of McDonald Investments Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this Section 4(f) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement referred to in the Prospectus.
(g) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via EXXXX to the Representative promptly after they become available, copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the NASD or any national securities exchange on which the Common Stock is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Time of Sale Prospectus under the caption “Use of Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the Nasdaq all documents and notices required in connection therewith.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The Company To cause each person listed on Schedule F hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule E hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule F hereto shall be entitled to transfer and assign shares of Common Stock (i) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an “Entity”), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (ii) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person’s spouse or members of such person’s immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule E hereto prior to time reasonably request, including any and such transfer.
(m) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(n) If the Company elects to rely upon Rule 462(b) under the Securities Act Regulations, 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 Prospectus and in order Company shall at the time of filing either pay to evidence the accuracy Commission the filing fee for the Rule 462(b) Registration Statement or completeness give irrevocable instructions for the payment of any of such fee pursuant to Rule 111(b) under the conditions contained in this AgreementSecurities Act Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Superior Well Services, INC)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsUnderwriter:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required and otherwise to cooperate in order to qualify, where practicable, qualifying the Notes Offered Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions states as the Company Underwriter may agree, (B) continue designate and to maintain such qualifications in effect for as so long as may be necessary to complete required for the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)Offered Securities; PROVIDED, HOWEVER, provided that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of the process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Offered Securities); and to promptly advise the Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such jurisdiction. The Broker-Dealer acknowledges purpose;
(b) to make available to the Underwriter, as soon as practicable after the execution and agrees that delivery of this Agreement, and thereafter from time to time to furnish to the Underwriter, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriter may impose special minimum suitability standards on Purchasers request for the purposes contemplated by the Act; in some jurisdictions case the Underwriter is required to deliver a prospectus after the nine-month period referred to in order Section 10(a)(3) of the Act in connection with the sale of the Offered Securities, the Company will prepare promptly upon request such amendment or amendments to obtain qualifications therein the Registration Statement and that Brokersuch prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter), (i) when any post-Dealer must comply therewith in soliciting subscriptions from Purchasers. The effective amendment to the Registration Statement becomes effective and (ii) when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to promptly notify the Broker-Dealer of any file in a timely manner under such special standards.Rule);
(d) The Company consents to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter), of any request by the Commission for amendments or supplements to the use Registration Statement or the Prospectus or for additional information with respect thereto, or notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every commercially reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and, for so long as the delivery of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, is required in connection with the offering offer or sale of the Notes and Offered Securities, to file no such amendment or supplement to which the Underwriter shall object in writing;
(e) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) of the Act;
(f) (i) to the extent not publicly filed, to furnish to the Underwriter for such a period of time thereafter two (2) years from the date of this Agreement copies of any reports or other communications which the Company shall send to its stockholders and (ii) such other information publicly disclosed by the Company as the Underwriter may reasonably request regarding the Company, in each case as soon as reasonably practicable after such reports, communications, documents or information become available, or are requested by the Underwriter;
(g) to advise the Underwriter promptly of the happening of any event known to the Company within the time during which a Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct which would require the making of any change in the Prospectus then being used, any event occurs as a result of which so that the Prospectus, as then amended or supplemented, Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein therein, in the light of the circumstances under which they are made, not misleadingmisleading and, during such time, to prepare and furnish, at the Company’s expense, to the Underwriter promptly such amendments or if it becomes supplements to such Prospectus as may be necessary at to reflect any time such change and to amend furnish the Underwriter a copy of such proposed amendments or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an before filing any such amendment or supplement to with the Prospectus which will correct such statement or omission or effect such compliance.Commission;
(eh) The Company will furnish, without charge, to furnish the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Underwriter five (5) conformed copies of each Preliminary Prospectus, the Initial Registration Statement and any pre-effective or post-effective of all amendments thereto (including all exhibits thereto);
(i) to apply the net proceeds from the sale of the Offered Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus;
(j) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each preliminary prospectus, the Prospectus, and all any amendments and or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriter (including costs of mailing and shipment), (ii) the registration, issuance, sale and delivery of the Offered Securities, (iii) the printing of this Agreement, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriter (including costs of mailing and shipment), (iv) the qualification of the Offered Securities for offering and sale under state and foreign laws and the determination of their eligibility for investment under state and foreign laws as aforesaid (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriter) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriter, (v) any listing of the Offered Securities on any securities exchange or qualification of the Offered Securities for quotation on the Nasdaq National Market and any registration thereof under the Exchange Act, (vi) review of the public offering of the Offered Securities by the NASD (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriter), (vii) the costs and expenses of the Company relating to presentations or meeting undertaken in each case connection with the marketing of the offer and sale of the Offered Securities to prospective investors and the Underwriter’s sales force, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show and (viii) the performance of the other obligations of the Company hereunder; provided, however, that except as soon as available otherwise set forth in this Agreement, the Underwriter shall pay its own costs and in such quantities expenses, including the costs and expenses of counsel for the Underwriter;
(k) for so long as the Broker-Dealer may delivery of the Prospectus is required in connection with the offer or sale of the Offered Securities, to furnish to the Underwriter a reasonable period of time before filing with the Commission a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and to not make any filing to which the Underwriter reasonably request.object;
(fl) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will to not take, directly or indirectly, any action designed to, to or which may constitute or which might in the future reasonably be expected to cause or result inresult, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any securities security of the Company.Company to facilitate the sale or resale of the Offered Securities;
(gm) The Company not to, during the Lock-Up Period, without the prior written consent of Pacific Growth Equities, LLC, effect the Disposition of, directly or indirectly, any Securities other than the sale of the Offered Securities hereunder; provided that nothing in this Agreement shall furnishprevent the Company’s issuance of equity securities under the Company’s currently authorized equity incentive plans, including its employee stock purchase plan, or cause upon exercise of outstanding equity awards;
(n) to file promptly all reports and any definitive proxy or information statement required to be furnished, or make available, or cause filed by the Company with the Commission in order to be made available, comply with the Exchange Act subsequent to the Broker-Dealer during date of the Offering Period such additional documents Prospectus and information regarding the Company and its affairs for so long as the Brokerdelivery of a prospectus is required in connection with the offering or sale of the Offered Securities, and to promptly notify the Underwriter of such filing;
(o) if, at the time this Agreement is executed and delivered, it is necessary for a post-Dealer may from time effective amendment to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and or an additional registration statement to be declared effective before the Prospectus and in order to evidence the accuracy or completeness of any offering of the conditions contained Offered Securities may commence, the Company will endeavor to cause such post-effective amendment or additional registration statement to become effective as soon as possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in this Agreementwriting, when such post-effective amendment or additional registration statement has become effective; and
(p) to use all commercially reasonable efforts to maintain the quotation of the Offered Securities on the Nasdaq National Market and to file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have securities traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
Appears in 1 contract
Samples: Underwriting Agreement (La Jolla Pharmaceutical Co)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act Regulations; during the period beginning on the date hereof and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement or Prospectus which shall be disapproved by the Representative promptly after reasonable notice thereof; 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 effectiveeffective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representative with copies thereof; (Bto file promptly, and in any event within the time periods specified, all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of any request made the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Representative, promptly after it receives notice thereof, of the issuance by the SEC for amending Commission of any stop order or of any order preventing or suspending the Registration Statement, for supplementing use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; or (C) and, in the event of the issuance by the SEC of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purposesuch qualification, and will promptly to use its reasonable best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus (and in such quantities as the Representative may reasonably request, and, if the delivery of a prospectus is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation 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 request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders via EDGAR within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement (as the term "effective date" is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and any pre-effective or post-effective amendments thereto its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the ProspectusSecurities Act 16 Regulations (including, and all amendments and supplements theretoat the option of the Company, in each case as soon as available and in such quantities as Rule 158 under the Broker-Dealer may reasonably requestSecurities Act).
(f) Neither During the Company nor any of its officers or directors, nor its affiliates (within period beginning from the meaning date hereof and continuing to and including the date 180 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of McDonald Investments Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 180 day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 180 day restricted period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the 180 day period, the restrictions imposed in this Section 4(f) shall continue to apply until the expiration of the 18 day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing sentence shall not prohibit the issuance of (i) any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement referred to in the Prospectus or (ii) any shares of Common Stock that are issued pursuant to the transactions contemplated by the Contribution Agreement.
(g) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via EDGAR to the Representative promptly after they become xxailable, copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the NASD or any national securities exchange on which the Common Stock is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the Nasdaq all documents and notices required in connection therewith.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The Company To cause each person listed on Schedule D hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule C hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule D hereto shall be entitled to transfer and assign shares of Common Stock (i) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an "Entity"), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (ii) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person's spouse or members of such person's immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule C hereto prior to time reasonably request, including any and such transfer.
(m) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementStatement.
Appears in 1 contract
Samples: Underwriting Agreement (Superior Well Services, INC)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsUnderwriter:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required and otherwise to cooperate in order to qualify, where practicable, qualifying the Notes Offered Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions states as the Company Underwriter may agree, (B) continue designate and to maintain such qualifications in effect for as so long as may be necessary to complete required for the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)Offered Securities; PROVIDED, HOWEVER, provided that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of the process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Offered Securities); and to promptly advise the Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such jurisdiction. The Broker-Dealer acknowledges purpose;
(b) to make available to the Underwriter, as soon as practicable after the execution and agrees that delivery of this Agreement, and thereafter from time to time to furnish to the Underwriter, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriter may impose special minimum suitability standards on Purchasers request for the purposes contemplated by the Act; in some jurisdictions case the Underwriter is required to deliver a prospectus after the nine-month period referred to in order Section 10(a)(3) of the Act in connection with the sale of the Offered Securities, the Company will prepare promptly upon request such amendment or amendments to obtain qualifications therein the Registration Statement and that Brokersuch prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter, (i) when any post-Dealer must comply therewith in soliciting subscriptions from Purchasers. The effective amendment to the Registration Statement becomes effective and (ii) when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to promptly notify the Broker-Dealer of any file in a timely manner under such special standards.Rule);
(d) The Company consents to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter), of any request by the Commission for amendments or supplements to the use Registration Statement or the Prospectus or for additional information with respect thereto, or notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every commercially reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and, for so long as the delivery of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, is required in connection with the offering offer or sale of the Notes and Offered Securities, to file no such amendment or supplement to which the Underwriter shall object in writing;
(e) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) of the Act;
(i) to the extent not publicly filed, to furnish to the Underwriter for such a period of time thereafter two (2) years from the date of this Agreement copies of any reports or other communications that the Company shall send to its stockholders and (ii) such other information publicly disclosed by the Company as the Underwriter may reasonably request regarding the Company, in each case as soon as reasonably practicable after such reports, communications, documents or information become available, or are requested by the Underwriter;
(g) to advise the Underwriter promptly of the happening of any event known to the Company within the time during which a Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct that would require the making of any change in the Prospectus then being used, any event occurs as a result of which so that the Prospectus, as then amended or supplemented, Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein therein, in the light of the circumstances under which they are made, not misleadingmisleading and, during such time, to prepare and furnish, at the Company’s expense, to the Underwriter promptly such amendments or if it becomes supplements to such Prospectus as may be necessary at to reflect any time such change and to amend furnish the Underwriter a copy of such proposed amendments or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an before filing any such amendment or supplement to with the Prospectus which will correct such statement or omission or effect such compliance.Commission;
(eh) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectusmake generally available to its security holders, and all amendments and supplements theretoto deliver to you, in each case as soon as available and in such quantities reasonably practicable, but not later than the Availability Date (as the Broker-Dealer may reasonably request.
(f) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulationsdefined below), will take, directly or indirectly, any action designed to, or which might in an earnings statement covering a period of at least 12 months beginning after the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.Effective Date of
Appears in 1 contract
Samples: Underwriting Agreement (Dyax Corp)
Certain Agreements of the Company. The Company hereby covenants to and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause the Registration StatementIf, if not effective at after the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective; .
(Bb) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) of the Securities Act Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) of the Securities Act Regulations; to make no further amendment or any request made supplement to the Registration Statement or Prospectus which shall be disapproved by the SEC for amending Representative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration StatementStatement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representative with copies thereof; to advise the Representative, for supplementing 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 the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; or (C) and, in the event of the issuance by the SEC of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purposesuch qualification, and will promptly to use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possiblewithdrawal of such order.
(c) The Company will (A) Promptly, from time to time, to take or cause such action as the Representative may reasonably request to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualify the Notes Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions as the Company Representative may agree, (B) continue request and to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect such jurisdictions for as long as may be necessary to complete the distribution of the NotesSecurities, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth provided that in clauses (A) and (B); PROVIDED, HOWEVER, that connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus (and in such quantities as the Representative may reasonably request, and, if the delivery of a prospectus or registration notice is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Prospectus or registration notice is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus or registration notice 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 request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement (as the term “effective date” is defined in Rule 158(c) of the Securities Act Regulations), an earnings statement of the Company and any pre-effective or post-effective amendments thereto its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the ProspectusSecurities Act Regulations (including, and all amendments and supplements theretoat the option of the Company, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestRule 158).
(f) Neither During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, except as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of the Representative; provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 180-day restricted period, the Company nor any of its officers issues an earnings release or directors, nor its affiliates material news or a material event relating to the Company occurs or (within ii) prior to the meaning expiration of the Rules 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed in this Section 3(f) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing restrictions shall not apply to (a) the grant by the Company of options to purchase shares of Common Stock under the 2004 Stock Option Plan, provided, however, that any shares issued pursuant to such plan shall be subject to the restrictions contained in the preceding paragraph; and Regulations)(b) the issuance by the Company of shares of Common Stock upon the exercise of warrants or options, will or upon the conversion of warrants or preferred stock, outstanding on the date hereof.
(g) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Time of Sale Prospectus under the caption “Use of Proceeds.”
(h) To use its best efforts to list, subject to official notice of issuance, the Securities on Nasdaq prior to the First Delivery Date and to maintain such listing and to file with Nasdaq all documents and notices required in connection with such listing.
(i) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(j) Not to take, directly or indirectly, any action designed to, or which might in the future reasonably be expected 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 CompanyCompany in connection with the distribution of the Securities.
(gk) To cause each executive officer and director of the Company and each stockholder listed on Schedule C to execute and deliver to the underwriters a lock-up letter agreement substantially to the effect set forth in the form attached hereto as Schedule B.
(l) To comply with all of the provisions of any undertakings in the Registration Statement.
(m) If the Company elects to rely upon Rule 462(b) of the Securities Act Regulations, the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., New York City 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) of the Securities Act Regulations.
(n) The Company shall furnish, or cause will use its best efforts to do and perform all things required to be furnished, done or make available, or cause to be made available, performed under this Agreement by the Company prior to the Broker-Dealer during First Delivery Date or the Offering Period such additional documents and information regarding the Company and its affairs Optional Delivery Date, as the Broker-Dealer case may from time be, and to time reasonably requestsatisfy all conditions precedent to the delivery of the Firm Securities and the Optional Securities.
(o) The Company represents that it has not made without the prior consent of the Representative, and agrees that it will not make without the prior consent of the Representative, any offer relating to the Securities that would constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act Regulations).
(p) The Company has complied and will comply with the requirements of Rule 433 under the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending.
(q) The Company agrees that if at any and all documentation reasonably requested regarding time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement and Statement, the Time of Sale Prospectus or the Prospectus and or would include an untrue statement of a material fact or omit to state any material fact necessary in order to evidence make the accuracy or completeness of any statements therein, in the light of the conditions contained circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representative, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission. The representation and warranty set forth in this Agreementthe immediately preceding sentence does not apply to statements or omissions made in reliance upon and in conformity with written information furnished to the Company by an Underwriter expressly for inclusion therein, which information consists solely of the information in the letter referred to in Section 6(e).
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer Underwriters as follows:
(a) The Company will use its best efforts not, either prior to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective Effective Date or thereafter during such period as promptly as practicable. If required, the Company will file the Prospectus and is required by law to be delivered in connection with sales of the Shares by an Underwriter or dealer, file any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Registration Statement or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplementedunless a copy thereof shall first have been submitted to the Representatives and made available to the Underwriters within a reasonable period of time prior to the filing thereof and the Underwriters shall not have objected thereto in good faith.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise notify the Broker-Dealer Representatives promptly, and will confirm such advice in writing, (A) when of the Registration Statementreceipt of any comments of, as amendedor requests for additional or supplemental information from, has become effective; if the provisions Commission, (B) of the filing of the Prospectus pursuant to Rule 430A promulgated 424 or Rule 434 under the Act will be relied uponSecurities Act, when (C) of the Prospectus has been filed in accordance with said Rule 430A time and when date that any post-effective amendment to the Registration Statement becomes effective; , (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (CD) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof, (E) of the happening of any event during the Prospectus Delivery Period that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make any such statements made therein, in light of the circumstances in which they are made, not misleading and (F) of receipt by the Company or any representatives or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of thereto, any Preliminary Prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rules 424(b), 430A and 434, as applicable, and will notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, copies of the executed signature pages of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, and such number of conformed copies of the Registration Statement, with or without exhibits, and any supplement or amendment thereto, as the Representatives shall reasonably request.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) Prior to the Effective Date, and thereafter during the Prospectus Delivery Period, the Company will deliver to the Representatives, without charge, as many copies of the Preliminary Prospectus and the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company Representatives may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdictionreasonably request. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Preliminary Prospectus (and the Prospectus, or any amendment or supplement thereto) , by the Broker-DealerUnderwriters and by all dealers to whom the Shares may be sold, both in connection with the initial offering or sale of the Notes Shares and for any period of time thereafter during the Prospectus Delivery Period. If during such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs shall occur, as a result of which the Preliminary Prospectus or the Prospectus, as then amended or supplemented, would include any an untrue statement of a material fact or omit to state a material fact necessary in order to make any statement therein, in the statements therein light of the circumstances under which it was made, not misleading, or if it becomes is necessary at any time to supplement or amend the Preliminary Prospectus or supplement the Prospectus to comply with the Act or the Rules and Regulationslaw, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Representatives, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Shares for sale under (or obtain exemptions from the application of) state securities or blue sky laws and Canadian provincial securities laws of those jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and make available to the Underwriters, upon request, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and make available to the Underwriters, upon request, a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Securities Act.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to (A) the preparation, printing and filing of the Registration Statement and exhibits thereto, each Preliminary Prospectus, the Prospectus and any amendment or supplement to the Registration Statement or an amendment or supplement to the Prospectus, (B) the preparation and delivery of certificates representing the Shares, (C) the printing of this Agreement and any and all ancillary underwriting documents, (D) furnishing (including costs of shipping and distributing) such copies of the Registration Statement, the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Preliminary Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (E) all fees and expenses associated with filing to list and listing Shares on the Nasdaq National Market, (F) the filing fees incident to the NASD's review and approval of the Underwriters participation in the offering and the distribution of the Shares, (G) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of each case as soon as available state and the provincial securities laws of Canada, (H) the fees and disbursements of counsel for the Underwriters in such quantities as connection with state Blue Sky and NASD filings (to a maximum of $12,500), (I) the Broker-Dealer may reasonably requestfees and expenses of the Company's counsel, accountants and other advisors, (J) the transfer agent for the Shares, (K) all necessary issue and transfer and other stamp taxes in connection with the issuance and sale of the Shares to the Underwriters, and (L) any and all travel, lodging and informational meeting expenses for Company personnel associated with the IPO and the selling process.
(fj) Neither The Company further agrees that, in addition to the costs and expenses payable pursuant to subsection (i) of this Section 4, it will pay to the Underwriters on the Closing Date by certified or bank cashiers check or, at the election of the Underwriters, by deduction from the proceeds of the offering contemplated herein a non-accountable expense allowance equal to three quarters of one percent (.75%) of the aggregate price to the public of the Firm Shares, none of which has been paid to date. In the event the Underwriters elect to exercise the over-allotment option described in Section 1(b) hereof, the Company nor any agrees to pay to the Underwriters on the Option Closing Date (by certified or bank cashiers check or, at the Representative's election, by deduction from the proceeds of the offering) a non-accountable expense allowance equal to three quarters of one percent (.75%) of the aggregate price to the public of the Option Shares.
(k) If Cruttenden Xxxx is ready, willing and able to effectuate the offering of the Common Stock as described in the Prospectus, but the Company elects not to reasonably proceed, the Company will reimburse Cruttenden Xxxx for up to $100,000 of its officers or directorsout-of pocket expenses, nor its affiliates (within the meaning including up to $75,000 of the Rules fees and Regulations), expenses of its counsel.
(l) The Company will takenot at any time, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected expected, to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of any of the Shares.
(m) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(n) During the period of 180 days commencing at the Closing Date, the Company will not, without the Representatives' prior written consent, grant options or warrants to purchase shares of Common Stock at a price less than the fair market value price or issue any securities convertible into shares of Common Stock at a conversion price less than the fair market value price or grant any stock purchase rights at a price less than such price designated in the Company's stock purchase plan as in effect as of the date of this Agreement, other than as may occur under the terms of the Company's employee and director stock option and stock purchase plans as described in the Prospectus.
(go) The Company shall furnishwill not, and will cause each of its existing record and beneficial holders of of Common Stock to enter into agreements with the Underwriters to the effect that they will not for a period of 180 days after the Effective Date, without the prior written consent of Cruttenden Xxxx Incorporated, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares (other than sales by the Company pursuant to employee and director stock option and stock purchase plans or other employee incentive compensation arrangements or in connection with the acquisition by the Company or its subsidiaries of technologies, product lines or businesses); provided that the recipients of shares in connection with a bona fide acquisition describe above agree in writing that they will not sell, contract to sell or otherwise dispose of any such shares of Common Stock for a period of 180 days after the Effective Date.
(p) The Company will use all reasonable efforts to comply with, or cause to be furnishedcomplied with, or make available, or cause to be made available, the conditions precedent to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any several obligations of the conditions contained Underwriters in this AgreementSECTION 5 hereof.
(q) The Company shall register the Common Stock under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and shall use its best efforts to maintain such registration for so long as such registration shall be required.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company has filed or will use its best efforts file each Statutory Prospectus (including the Final Prospectus) pursuant to cause and in accordance with Rule 424(b) not later than the Registration Statement, if not effective at second business day following the time earlier of the date it is first used or the execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will promptly advise the Broker-Dealer (A) when Representatives of any proposal to amend or supplement at any time the Registration Statement, as amended, has become effective; if the provisions ADS Registration Statement or any Statutory Prospectus at any time prior to the later of Rule 430A promulgated under (i) completion of the distribution of the Offered Securities within the meaning of the Act and (ii) completion of the Lock-Up Period (as defined below) and will not effect such amendment or supplement without the Representatives’ consent (which shall not be relied uponunreasonably withheld); and the Company will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, when (ii) any request by the Prospectus has been filed in accordance with said Rule 430A and when Commission or its staff for any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the supplement to any Statutory Prospectus or for any additional information; or , (Ciii) of the issuance institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use ADS Registration Statement or, to the Company’s best knowledge, threatening of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or, to the Company’s best knowledge, threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possiblepossible the withdrawal thereof.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct by any Underwriter or dealer, any event occurs or condition exists as a result of which the Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend the Registration Statement or the ADS Registration Statement or supplement the Final Prospectus to comply with the Act or the Rules and RegulationsAct, the Company will promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment Commission and furnish, at its own expense, to the Registration Statement or Underwriters and the dealers and any other dealers upon reasonable request of the Representatives, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ 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, unless stated specifically to constitute a waiver of such condition.
(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish, without chargeupon the Representatives’ reasonable request, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representative copies of each Preliminary the Registration Statement (including exhibits filed thereto and documents incorporated by reference therein), the ADS Registration Statement (without exhibits thereto but including documents incorporated by reference therein), any Statutory Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, Final Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as the Broker-Dealer may Representatives reasonably request.
(f) The Company will use its reasonable commercial efforts to arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will use its reasonable commercial efforts to continue such qualifications in effect so long as required for the distribution of the Offered Securities.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to, (i) all fees and expenses in connection with the preparation and filing of the Registration Statement (including financial statements and exhibits), the ADS Registration Statement, any preliminary prospectus, the General Disclosure Package, the Final Prospectus and any Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) the fees, disbursements and expenses of the Company’s counsels and accountants, (iii) all costs and expenses related to the transfer and delivery of the ADSs to the Underwriters, including any transfer or other taxes payable thereon, (iv) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Securities under state or foreign securities laws and all expenses in connection with the qualification of the Offered Securities for offer and sale under state or foreign securities laws as provided in Section 5(e) hereof, including filing fees, (v) all filing fees incurred in connection with the review and qualification of the offering of the Offered Securities by the Financial Industry Regulatory Authority, Inc. (“FINRA”), (vii) all costs and expenses incident to listing the Offered Securities on the NYSE and any registration thereof under the Exchange Act, (vi) the costs and expenses of qualifying the Offered Securities for inclusion in the book-entry settlement system of DTC, (vii) the cost of printing ADRs corresponding to the Offered Securities, (viii) the costs and charges of any transfer agent, registrar or depositary, (ix) the costs and expenses of the Company relating to investor presentations or any “road show” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, expenses associated with hosting investor meetings or luncheons, fees and expenses of any consultants engaged in connection with any road show or investor presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company, (x) the document production charges and expenses associated with the printing and delivery of this Agreement, any closing documents contemplated hereunder (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Underwriters agree to reimburse the Company for the Company’s documented expenses associated with the transactions contemplated in the Underwriting Agreement (the “Offering”) in an amount of up to US$[***] at the First Closing Date (the “Reimbursement Amount”). Each of the Underwriters agrees to be responsible for that portion of the Reimbursement Amount that is proportional to the aggregate amount of commissions paid to or received by the Underwriters in connection with the Offering.
(h) The Company will indemnify and hold harmless the Underwriters against any stamp, issuance, transfer or other similar taxes or duties, if any, on the issue, transfer, delivery or sale to the Underwriters and the initial transfer, delivery or sale by the Underwriters to purchasers of the Offered Securities. All payments to be made by the Company to the Underwriters under this Agreement shall be made without set-off or counterclaim, and free and clear of, and without deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature and all interest, penalties or similar liabilities with respect thereto, imposed by applicable jurisdictions or by any department, agency or other political subdivision or taxing authority thereof or therein (“Taxes”). If any Taxes are required by law to be deducted or withheld in connection with any such payment, the Company shall pay such additional amounts as may be necessary such that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made, except that no additional amounts shall be payable in respect of (a) any Taxes that would not have been imposed but for a present or former connection between such Underwriters and the applicable jurisdiction (or any department, agency or other political subdivision or taxing authority thereof or therein) other than a connection arising solely from such Underwriter having executed, delivered or performed its obligations, or received a payment, under this Agreement; (b) any Taxes that would not have been imposed but for the failure of such International Underwriter to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the taxing jurisdiction of the Underwriter if such compliance is required or imposed by law as a precondition to an exemption from, or reduction in, such Taxes; or (c) any income or franchise tax on the overall net income of such Underwriter.
(i) For the period specified below (the “Lock-Up Period”), the Company will not, directly or indirectly, take any of the following actions with respect to its Ordinary Shares or ADSs, or any securities convertible into or exchangeable or exercisable for any of its Ordinary Shares or ADSs (“Lock-Up Securities”): (i) offer, pledge, issue, sell, contract to sell or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Act relating to Lock-Up Securities, other than registration statements on Form S-8 relating to the issuance, vesting, exercise or settlement of equity awards granted or to be granted pursuant to any employee benefit plan described in the Final Prospectus, or publicly disclose the intention to take any such action, without the prior written consent of the Representatives, except (A) the Offered Securities to be sold hereunder, (B) the issuance of Ordinary Shares or ADSs or the grant of restricted shares, restricted ADSs or options to purchase Ordinary Shares or ADSs or similar securities under the Company’s employee share option scheme and equity plan, (C) the issuance of Ordinary Shares pursuant to the conversion of preference shares, convertible promissory notes or bonds or convertible notes outstanding on the date hereof of which the Representatives have been advised in writing or which is otherwise described in the Registration Statement, the General Disclosure Package and the Final Prospectus, and (D) the issuance of Ordinary Shares or ADSs in connection with any mergers or acquisitions approved by the Board. The Lock-Up Period will commence on the date hereof and continue for 90 days after the date hereof or such earlier date that the Representatives consent to in writing.
(j) The Company will use its commercially reasonable best efforts to list the Offered Securities on the NYSE.
(k) The Company will, on or prior to each Closing Date, deposit the Offered Shares with the Depository in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that Firm Securities or Optional Securities, as the case may be, will be issued by the Depositary against receipt of such Offered Shares and delivered to the Underwriters at each Closing Date.
(l) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is (or but for the exemption in Rule 172 would be) required to be delivered under the Act in connection with the offer or sale of the Offered Securities, will file all reports and other documents required to be filed by the Company with the Commission pursuant to the Exchange Act and the Rules and Regulations within the time periods required thereby.
(m) The Company agrees that (i) it will not attempt to avoid any judgment in connection with this Agreement applied or denied to it in a court of competent jurisdiction outside the Cayman Islands, and following the consummation of the offering of the Offered Securities, it will use its best efforts to obtain and maintain all approvals required, if any, in the Cayman Islands to pay and remit outside the Cayman Islands all dividends declared by the Company and payable on the Ordinary Shares, if any, and (ii) it will use its best efforts to obtain and maintain all approvals required, if any, in the Cayman Islands for the Company to acquire sufficient foreign exchange for the payment of dividends, if any.
(n) The Company intends to apply the net proceeds to the Company from the sale of the Offered Securities in the manner set forth under the heading “Use of Proceeds” in the Registration Statement, the General Disclosure Package and the Final Prospectus and to file such reports with the Commission with respect to the sale of the Offered Securities and the application of the proceeds therefrom as may be required by Rule 463 under the Act. Neither the Company nor the Subsidiaries and Affiliated Entities intends to use any of its officers or directors, nor its affiliates (within the meaning proceeds from the sale of the Rules Offered Securities hereunder to repay any outstanding debt owed as of the date hereof to any affiliate of any Underwriter.
(o) The Company agrees not to, and Regulations)agrees to cause the Subsidiaries and Affiliated Entities not to, will take, directly or indirectly, any action designed to, to or which that might in the future reasonably be expected to cause or result in, in the stabilization or manipulation of the price of any securities security of the CompanyCompany to facilitate the sale or resale of the Offered Shares or the Offered Securities.
(gp) The Company shall furnishagrees not to, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Offered Shares or Offered Securities by means of any “prospectus” (within the meaning of the Act), or cause use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Offered Shares or the Offered Securities, in each case other than the Final Prospectus.
(q) The Company agrees to promptly notify the Representatives if the Company ceases to be furnished, or make available, or cause to be made available, a Foreign Private Issuer at any time prior to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any completion of the conditions contained in this Agreementdistribution of Offered Securities within the meaning of the Act (as notified by the Underwriters to the Company) and 15 days after expiration of the Lock-Up Period.
Appears in 1 contract
Samples: Underwriting Agreement (Sea LTD)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followseach Agent:
(a) The Company will use its best efforts (i) if, at any time during the period when a prospectus is required by the Act to cause be delivered in connection with the distribution of the Securities, the Registration StatementStatement shall cease to comply with the requirements of the Act with respect to eligibility for the use of Form F-3, if not effective at on which the time of execution of this AgreementRegistration Statement was filed with the Commission, and any amendments thereto, the Registration Statement shall cease to become effective be an “automatic shelf registration statement” (as promptly as practicable. If requireddefined in Rule 405 under the Act) or the Company shall have received a notice from the Commission pursuant to Rule 401(g)(2), the Company will (A) promptly notify the Agent, (B) promptly file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) Commission a new registration statement under the Act. During any time when a prospectus Act relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Securities or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any a post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus which new registration statement or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending shall comply with the use requirements of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or Act and shall be in a form satisfactory to the institution or threat of any investigation or proceeding for that purposeAgent, and will (C) use its best efforts to prevent cause such new registration statement or post-effective amendment to become effective under the issuance of any such order and, if issued, to obtain the lifting thereof Act as soon as possible.
practicable, (cD) The Company will promptly notify the Agent of such effectiveness and (AE) take all other action necessary or cause appropriate to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete permit the distribution of the NotesSecurities to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement or post-effective amendment, if any;
(Cii) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be will file the Program Prospectus, the Preliminary Prospectus and the Prospectus, each as amended and supplemented in a form approved by the Agent, with the Commission within the time periods specified by the Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act and will file promptly all reports and other information required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that be filed by the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order with the Commission pursuant to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify Section 13(a), 13(c), 14 or 15(d) of the Broker-Dealer of any such special standards.
(d) The Company consents Exchange Act subsequent to the use date of the Prospectus and for so long as the delivery of a prospectus (and any amendment or supplement theretoor, in lieu thereof, the notice referred to in Rule 173(a) by under the Broker-Dealer, Act) is required in connection with the offering or sale of the Notes Securities;
(iii) to make no amendment or supplement to the Registration Statement, the Basic Prospectus, the Program Prospectus, the Time of Sale Information or the Prospectus (A) prior to the Commencement Date which shall be disapproved by any Agent promptly after reasonable notice thereof, (B) except as required by law, after the date of any Terms Agreement or other agreement by an Agent to purchase Securities as principal and prior to the related Time of Delivery if such amendment or supplement is reasonably objected to by any Agent party to such Terms Agreement or so purchasing as principal promptly after reasonable notice thereof or (C) during the period beginning on the Commencement Date and continuing for as long as may be required under applicable law, in the reasonable judgment of Nomura Securities International, Inc. after consultation with the Company, in order to offer and sell any Securities in Secondary Market Transactions as contemplated by the Prospectus (the “Secondary Transactions Period”), which shall be disapproved by Nomura Securities International, Inc. promptly after reasonable notice thereof;
(iv) that before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, the Company will furnish to the Agent and counsel for the Agent a copy of the proposed Issuer Free Writing Prospectus for review and will not prepare, use, authorize, approve, refer to or file any such period of time thereafter Issuer Free Writing Prospectus to which the Agent reasonably objects;
(v) to prepare, with respect to any Securities to be sold through or to such Agent pursuant to this Agreement, a Pricing Supplement with respect to such Securities in a form previously approved by such Agent and to file such Pricing Supplement (or components thereof, as the Prospectus case may be) with the Commission within such time as may be required by the Act;
(vi) to file promptly with the Commission all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act, for so long as the delivery of a prospectus is required by law to be delivered in connection therewith. Ifwith the offering or sale of the Securities (including, at in the case of Nomura Securities International, Inc., in any Secondary Market Transactions during the Secondary Transactions Period), and during such same period to advise the Agent (with confirmation in writing), promptly after it receives notice thereof, of (A) the time when a any amendment to the Registration Statement, the Preliminary Prospectus or the Prospectus has been filed or becomes effective or any supplement to the Preliminary Prospectus, the Prospectus or any amendment thereof, or of any Issuer Free Writing Prospectus, has been filed with the Commission, of (B) the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness or the use of any prospectus relating to the Notes is required Securities or the initiation or threatening of any proceeding for that purpose or pursuant to be delivered under Section 8A of the Act, of (C) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of (E) the initiation or threatening of any proceeding for any such purpose, of (E) any request by the Commission for the amending or supplementing of the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information relating to the Securities, the Registration Statement, the Preliminary Prospectus or the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information, or (F) of the occurrence of any event occurs within six months after the time of issue of the Prospectus as amended or supplemented in connection with the offering or sale of the Securities (including Securities purchased from the Company by the Agent as principal and including, in the case of Nomura Securities International, Inc., in any Secondary Market Transactions during the Secondary Transactions Period) as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleadingtherein, or if it becomes necessary at any time to amend or supplement in the Prospectus to comply with light of the Act or circumstances existing when the Rules and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and Time of Sale Information or any pre-effective or post-effective amendments thereto and the ProspectusIssuer Free Writing Prospectus is delivered to a purchaser, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.not misleading; and
(fvii) Neither in the Company nor any of its officers or directors, nor its affiliates (within the meaning event of the Rules and Regulationsissuance 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 (or if any such action is known to be pending), will take, directly promptly to use its best efforts to obtain its withdrawal (or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and prevent its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.issuance);
Appears in 1 contract
Samples: Distribution Agreement (Nomura America Finance, LLC)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement becomes effective; (B) to be declared effective before the offering of any request made the Securities may commence, to endeavor to cause such post-effective amendment to become effective as soon as possible and to advise the Representative promptly and, if requested by the SEC Representative, to confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act Regulations; during the period beginning on the date of this Agreement and ending on the date, which in the opinion of counsel for amending the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration StatementStatement or Prospectus, for supplementing which shall be disapproved by the Representative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time when any Preliminary Prospectus 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 the Representative with copies thereof; to file promptly and, in any event, within the time periods specified all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for additional informationso long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required in connection with the offering or sale of the Securities; or (C) to advise the Representative, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment other prospectus in respect of the Securities, of the suspension of the qualification of the Securities for offering or supplement thereto sale in any jurisdiction, of the initiation or the institution or threat threatening of any investigation or proceeding for that any such purpose, and will use its best efforts to prevent 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 the Prospectus or other prospectus or suspending any such order andqualification, if issued, promptly to use its reasonable best efforts to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus in such quantities as the Representative may reasonably request and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act Regulations) is delivered, not misleadingmisleading or, or if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which that will correct such statement or omission or effect such compliance.
, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectusin lieu thereof, the Registration Statement and notice referred to in Rule 173(a) under the Securities Act Regulations) in connection with sales of any pre-effective of the Securities at any time nine months or post-effective amendments thereto and more after the time of issue of the Prospectus, upon the request of the Representative but at the expense of such Underwriter, to prepare and all amendments deliver to such Underwriter as many written and supplements thereto, in each case as soon as available and in such quantities electronic copies as the Broker-Dealer Representative may reasonably requestrequest of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act. complying with the provisions of Section 11(a) of the Securities Act and the Securities Act Regulations (including, at the option of the Company, Rule 158 under the Securities Act).
(f) Neither During the Company nor any period beginning from the date of its officers or directors, nor its affiliates (within this Agreement and continuing to and including the meaning date 90 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of McDonald Investments Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this Section 3(f) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement referred to in the Prospectus.
(g) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via XXXXX to the Representative promptly after they become available copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the “NASD”) or any national securities exchange on which the Common Stock is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Time of Sale Prospectus under the caption “Use of Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on AMEX prior to the First Delivery Date and to maintain such listing and to file with AMEX all documents and notices required in connection therewith.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The Company To cause each person listed on Schedule C hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule B hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule C hereto shall be entitled to transfer and assign shares of Common Stock (1) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an “Entity”), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (2) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person’s spouse or members of such person’s immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule B hereto prior to time reasonably request, including any and such transfer.
(m) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(n) If the Company elects to rely upon Rule 462(b) under the Securities Act Regulations, to file a Rule 462(b) Registration Statement and with the Prospectus and Commission in order to evidence compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the accuracy or completeness date of any of the conditions contained in this Agreement, and at the time of filing to 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 Regulations.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause agrees with the Registration Statementseveral Underwriters that:
(i) If, if not effective at the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Offered Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective; . Prior to the termination of the offering of the Shares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing;
(Bii) The Company will promptly advise the Representatives (1) when the Final Prospectus shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (C4) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (5) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Offered Shares for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possible.possible the withdrawal thereof;
(ciii) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Rules and Regulationsrespective rules thereunder, the Company promptly will so shall (A) notify the Broker-Dealer andRepresentatives of such event, subject to Section 3(a(B) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (i) of this Section 6(a), an amendment or supplement to the Prospectus which will shall correct such statement or omission or an amendment which shall effect such compliance.compliance and (C) supply any supplemented Prospectus to you in such quantities as you may reasonably request;
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Representatives (to the extent unavailable on open-access public filing retrieval systems) an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(v) Upon your request, the Company shall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. The Company shall pay the expenses of printing or other production of all documents relating to the offering of the Offered Shares;
(vi) The Company will furnisharrange, without chargeif necessary, to for the Broker-Dealer or on qualification of the Offered Shares for sale under the laws of such Broker-Dealer's order, at such places jurisdictions as such Broker-Dealer the Representatives may designate, copies will maintain such qualifications in effect so long as required for the distribution of each Preliminary Prospectusthe Offered Shares and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Shares, in any jurisdiction where it is not now so subject;
(vii) Without the prior written consent of the Representatives, until the Lock-Up Period (as defined in Section 6(b) below) has expired, the Company and each of its individual trustees and executive officers shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), except for the issuance of the Offered Shares pursuant to the Registration Statement Statement, the grant of options and any pre-effective issuance of Common Shares pursuant to the Company's existing stock option plan or post-effective amendments thereto bonus plan, the issuance of Common Shares pursuant to options granted pursuant to the Company's existing stock option plan, and the Prospectus, and all amendments and supplements theretoissuance of Common Shares to holders of Partnership Units where the Company is required to issue such Common Shares pursuant to conversion rights of such holders of Partnership Units existing prior to the date of this Agreement, in each case as soon as available described, or incorporated by reference, in the Registration Statement and the Prospectus. In the event that prior to the expiration of the Lock-Up Period, (A) any Common Shares are issued pursuant to the Company's existing stock option plan or bonus plan that are exercisable prior to the expiration of the Lock-Up Period or (B) any registration is effected on Form S-8 or on any successor form relating to Common Shares that are issuable prior to the expiration of the Lock-Up Period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities who is a trustee or officer that, until the expiration of the Lock-Up Period, such person will not, without your prior written consent, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any Common Shares (or any securities convertible into, exercisable for or exchangeable for any Common Shares) owned by such person;
(viii) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the New York Stock Exchange (including any required registration under the Exchange Act); and
(ix) The Company and the Partnerships will apply the net proceeds from the offering of the Offered Shares in such quantities as the Broker-Dealer may reasonably requestmanner set forth under "Use of Proceeds" in the Prospectus.
(fb) Neither For a period of 90 days after the date of the Prospectus Supplement (the "Lock-Up Period"), the Company nor will not, directly or indirectly, (1) offer, pledge, sell, or contract to sell any Common Shares, (2) sell any option or contract to sell any Common Shares, (3) purchase any option or contract to sell any Common Shares, (4) grant any option, right or warrant to purchase any Common Shares, (5) enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Common Shares whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise, (6) take any of the foregoing actions with respect to any securities convertible into or exchangeable or exercisable for or repayable with Common Shares, (7) file with the Commission a registration statement under the Act relating to any additional Common Shares or securities convertible into or exchangeable or exercisable for its officers Common Shares, or directors, nor its affiliates (within 8) publicly disclose the meaning intention to take any of the Rules and Regulationsforegoing actions, without the prior written consent of the Representatives, except issuances of Common Shares (A) in connection with any acquisitions, joint ventures or similar arrangements, so long as the recipients of those shares agree not to sell or transfer those shares in a public market transaction during the Lock-Up Period; (B) in connection with the acquisition by merger of the Net Partnerships (as described in the prospectus supplement), (C) upon the exercise of outstanding employee stock options, (D) and options pursuant to employee benefit plans, (E) pursuant to non-employee director or trustee stock plans, (F) pursuant to the Company's dividend reinvestment plan, or (G) upon conversion of any currently outstanding convertible securities.
(c) The Company will not take, directly or indirectly, any action designed to, to or which has constituted or which might in the future reasonably be expected to cause or result inresult, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any securities security of the CompanyCompany to facilitate the sale or resale of the Offered Shares.
(gd) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, If the sale of the Offered Shares provided for herein is not consummated because any condition to the Broker-Dealer during obligations of the Offering Period such additional documents and information regarding Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including perform any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy agreement herein or completeness comply with any provision hereof other than by reason of a default by any of the conditions contained Underwriters, the Company will reimburse the Underwriters severally through Wachovia on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in this Agreementconnection with the proposed purchase and sale of the Offered Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Lexington Corporate Properties Trust)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company It will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file prepare the Prospectus in a form approved by you and any amendment or supplement thereto with the SEC in the manner and within the time period required by to file such Prospectus pursuant to Rule 424(b) under the Act. During Securities Act not later than the Commission's close of business on the second business day following the date of this Agreement; to make no further amendment or any time when a prospectus relating supplement to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amendedor the Prospectus prior to the Closing Date that 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 become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely a description of the Offered Securities, in accordance a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with said the Commission pursuant to Rule 430A 433(d) under the Securities Act; to file promptly all reports and when any post-effective amendment 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 Registration Statement becomes effective; (B) date of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and for so long as the delivery of a prospectus (or for additional informationin lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Offered Securities; or (C) to advise you, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Offered Securities, of the suspension of the qualification of the Offered 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 any amendment or supplement thereto or for additional information; and, in the institution or threat event of the issuance of any investigation stop order or proceeding for that purposeof any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, and will to promptly use its best efforts to prevent obtain the issuance withdrawal of such order; and in the event of any such order andissuance of a notice of objection, if issuedpromptly to take such steps including, to obtain without limitation, amending the lifting thereof as soon as possible.
(c) The Company will (A) take Registration Statement or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualifyfiling a new registration statement, where practicableat its own expense, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution permit offers and sales of the Notes, Offered Securities by the Underwriters (C) cause its counsel references herein to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company Registration Statement shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in include any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsamendment or new registration statement).
(db) The Company consents Prior to 10:00 a.m., New York City time, on the use 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 Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Offered Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act) is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time 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 Securities Act, the Exchange Act or the Rules Trust Indenture Act, to notify you and Regulations, the Company promptly will so notify the Broker-Dealer and, subject upon your request to Section 3(a) hereof, will file such document and to prepare and file with the SEC 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 amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which that will correct such statement or omission or effect such compliance; and in case any Underwriter is required under the Securities Act to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) in connection with sales of any of the Offered 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 Securities Act.
(c) To make generally available to its security holders as soon as practicable, but in any event not later than 16 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations thereunder (including, at the option of the Company, Rule 158).
(d) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Underwriters designate and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Underwriters, provided that the Company will not be required to qualify as a foreign corporation, to file a general consent to service of process in any such jurisdiction or to take any other action that would subject the Company to service of process in any suits (other than those arising out of the offering of the Offered Securities) or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(e) The Company will furnish, without charge, pay all expenses incident to the Broker-Dealer or on performance of its obligations under this Agreement and the Mortgage, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale and determination of their eligibility for investment under the laws of such Broker-Dealer's orderjurisdictions as the Underwriters designate and the printing of memoranda relating thereto, at such places as such Broker-Dealer may designatefor the fees and expenses of the Trustee and its professional advisors, copies for all expenses in connection with the execution, issue, authentication, packaging and initial delivery of each Preliminary Prospectusthe Offered Securities, the Registration Statement preparation and any pre-effective or post-effective amendments thereto printing of this Agreement, the Offered Securities, the Disclosure Package and the Prospectus, any Issuer Free Writing Prospectus, and all amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities, for the cost of any advertising approved by the Company in each case connection with the issue of the Offered Securities, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees, and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus (including any amendments and supplements thereto) to the Underwriters. Except as soon as available otherwise provided in this Section 5(e) or in Section 9 of this Agreement, the Underwriters will pay all of their costs and in such quantities as expenses, including fees and expenses of their counsel, transfer taxes on the Broker-Dealer may reasonably requestresale of the Offered Securities and any advertising and travel expenses incurred by them.
(f) Neither In connection with the offering, until the earlier of (i) 180 days following the Closing Date and (ii) the date the Underwriters shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its officers affiliates has or directorswill, nor either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(within g) From the meaning date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Rules and Regulations)Representatives, will takeoffer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any action designed or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or which might in guaranteed by the future reasonably be expected to cause or result in, stabilization or manipulation Company and having a maturity of more than one year from the price date of any securities of the Companyissue.
(gh) 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.
(i) The Company shall furnish(i) represents and agrees that, or cause other than the final term sheet prepared and filed pursuant to be furnishedSection 5(a) hereof, or without the prior consent of the Representatives, it has not made and will not make available, or cause to be made available, any offer relating to the Broker-Dealer during Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Offering Period such additional documents Act and information regarding (ii) has complied and will comply with the Company and its affairs as requirements of Rule 433 under the Broker-Dealer may from time Act applicable to time reasonably requestany Issuer Free Writing Prospectus, including any timely filing with the Commission or retention where required and all documentation reasonably requested regarding information in legending.
(j) The Company has paid the Registration Statement and registration fee for this offering of Offered Securities pursuant to Rule 456(b)(1) under the Prospectus Securities Act or will pay such fees within the time period required by such rule (without giving effect to the proviso therein) and in order any event prior to evidence the accuracy or completeness of any of the conditions contained in this Agreement.Closing Date
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause agrees with the Registration StatementUnderwriter that:
(i) If, if not effective at the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Offered Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective; . Prior to the termination of the offering of the Offered Shares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing;
(Bii) The Company will promptly advise the Underwriter (1) when the Final Prospectus shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Offered Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (C4) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (5) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Offered Shares for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possible.possible the withdrawal thereof;
(ciii) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Rules and Regulationsrespective rules thereunder, the Company promptly will so shall (A) notify the Broker-Dealer andUnderwriter of such event, subject to Section 3(a(B) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (i) of this Section 6(a), an amendment or supplement to the Prospectus which will shall correct such statement or omission or an amendment which shall effect such compliance.compliance and (C) supply any supplemented Prospectus to you in such quantities as you may reasonably request;
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Underwriter (to the extent unavailable on open-access public filing retrieval systems) an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(v) Upon your request, the Company shall furnish to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof), so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Prospectus and any amendments thereof and supplements thereto as the Underwriter may reasonably request. The Company shall pay the expenses of printing or other production of all documents relating to the offering of the Offered Shares;
(vi) The Company will furnisharrange, without chargeif necessary, to for the Broker-Dealer or on qualification of the Offered Shares for sale under the laws of such Broker-Dealer's order, at such places jurisdictions as such Broker-Dealer the Underwriter may designate, copies will maintain such qualifications in effect so long as required for the distribution of each Preliminary Prospectusthe Offered Shares and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Shares, in any jurisdiction where it is not now so subject;
(vii) On or before completion of this offering, the Registration Statement Company shall make all filings required under applicable securities laws and any pre-effective or post-effective amendments thereto by the New York Stock Exchange (including as required by the Exchange Act); and
(viii) The Company and the Partnerships will apply the net proceeds from the offering and sale of the Offered Shares in the manner set forth under "Use of Proceeds" in the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(fb) Neither For a period of 90 days after the date of the Prospectus Supplement (the "Lock-Up Period"), the Company nor will not, directly or indirectly, (1) offer, pledge, sell, or contract to sell any Common Shares, (2) sell any option or contract to sell any Common Shares, (3) purchase any option or contract to sell any Common Shares, (4) grant any option, right or warrant to purchase any Common Shares, (5) enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Common Shares whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise, (6) take any of the foregoing actions with respect to any securities convertible into or exchangeable or exercisable for or repayable with Common Shares, (7) file with the Commission a registration statement under the Act relating to any additional Common Shares or securities convertible into or exchangeable or exercisable for its officers Common Shares, or directors, nor its affiliates (within 8) publicly disclose the meaning intention to take any of the Rules foregoing actions, without the prior written consent of the Underwriter, except issuances of Common Shares or any securities convertible into or exchangeable or exercisable for or repayable with Common Shares (A) in connection with any acquisitions, joint ventures or similar arrangements, so long as the recipients of those shares agree not to sell or transfer those shares in a public market transaction during the Lock-Up Period, (B) upon the exercise of outstanding employee stock options, (C) and Regulations)options pursuant to employee benefit plans, (D) pursuant to non-employee director or trustee stock plans, (E) pursuant to the Company's dividend reinvestment plan, or (F) upon conversion of any currently outstanding convertible securities.
(c) The Company will not take, directly or indirectly, any action designed to, to or which has constituted or which might in the future reasonably be expected to cause or result inresult, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any securities security of the CompanyCompany to facilitate the sale or resale of the Offered Shares.
(gd) The If the sale of the Offered Shares provided for herein is not consummated because (i) any condition to the obligations of the Underwriter set forth in Section 6 hereof is not satisfied other than by reason of a default by the Underwriter with respect to its obligations hereunder, (ii) of any termination pursuant to Section 9 hereof other than by reason of a default by the Underwriter with respect to its obligations hereunder or (iii) of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by the Underwriter of its obligations hereunder, then the Company will reimburse the Underwriter on demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by it in connection with the proposed purchase and sale of the Offered Shares; provided, however, that the Company shall furnishnot be required to reimburse more than $30,000 of the Underwriter's out-of-pocket expenses pursuant to this Section 6(d) if the sale of the Offered Shares provided for herein is not consummated because of a termination of this Agreement by the Underwriter that results from any event after the date of this Agreement but prior to delivery of and payment for the Offered Shares that has no direct relation to the Company or its business or properties, including, but not limited to, (i) if trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange; (ii) a banking moratorium shall have been declared either by Federal or New York State authorities; or (iii) there shall have occurred any new outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or cause other calamity or crisis the effect of which on financial markets is such as to be furnishedmake it, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any sole judgment of the conditions contained in this AgreementUnderwriter, impractical or inadvisable to proceed with the offering or delivery of the Offered Shares as contemplated by the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Lexington Corporate Properties Trust)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsAgents that it will furnish to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents, one signed copy of the Registration Statement, including all exhibits and all documents incorporated by reference, in the form it became effective and of all amendments thereto and that, in connection with each offering of Notes, it will take the following actions:
(a) The From the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold (i) the Company will advise each Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus by means of a post-effective amendment, sticker, or supplement (except post-effective amendment, supplements, and stickers relating solely to interest rates or maturities of Notes) but not by means of incorporation of document(s) by reference into the Registration Statement or the Prospectus; (ii) the Company will afford the Agents a reasonable opportunity to comment on any such proposed post-effective amendment, sticker, or supplement; (iii) the Company will advise each Agent of the filing of any such post-effective amendment, sticker, or supplement; and (iv) the Company will (x) advise each Agent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, (y) use its best efforts to cause prevent the issuance of any such stop order, and (z) if a stop order is issued, to obtain its lifting as soon as possible.
(b) If from the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold, the Company shall determine that it is necessary to suspend solicitation of the Notes because of the occurrence of an event that results in the Prospectus either (x) including an untrue statement of a material fact or omitting to state any material fact necessary to make the statements in such Prospectus, in light of the circumstances under which they were made when such Prospectus was delivered, not misleading, or (y) failing to comply with the Act, then the Company will promptly notify each Agent to suspend solicitation of purchases of the Notes. Notwithstanding Section 4(a) if the Company shall determine to amend or supplement the Registration StatementStatement or Prospectus to correct such result, it will advise each Agent promptly and afford the Agents a reasonable opportunity to discuss and comment upon the nature of the disclosure in such amendment or supplement. Notwithstanding the foregoing, if not effective at the time of execution any notification to suspend solicitations (i) this Agreement shall be in effect and any Agent shall own any of the Notes with the intention of reselling them, or (ii) the Company has accepted an offer to purchase Notes but the related settlement has not occurred, then the Company, subject to the provisions of Section 4(a) of this Agreement, will promptly prepare and any amendments thereto, to become effective as promptly as practicable. If required, file with the Company will file the Prospectus and any Commission an amendment or supplement thereto with which will correct such statement or omission or effect such compliance.
(c) The Company, during the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, will furnish to each Agent promptly after timely filing with the Commission all documents required to be filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except those filings associated with employee benefit plans). The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance immediately notify each Agent of sales of or dealings any downgrading in the Notes in accordance with the provisions hereof and rating of the ProspectusNotes or any other debt securities of the Company, or any proposal to downgrade the rating of the Notes or any other debt securities of the Company, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), as then amended or supplemented.
(b) As soon as the Company is advised learns of such downgrading or obtains knowledge thereof, the proposal to downgrade.
(d) The Company will advise the Broker-Dealer (A) when furnish to each Agent copies of the Registration Statement, as amendedincluding all exhibits except those incorporated by reference, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied uponany related preliminary prospectus, when any related preliminary prospectus supplement, the Prospectus has been filed and all amendments and supplements to such documents, in accordance with said Rule 430A each case as soon as available and when any post-effective amendment to the Registration Statement becomes effective; in such quantities as are reasonably requested.
(Be) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and The Company will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualification of the Notes for offer sale and sale the determination of their eligibility for investment under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Agents designate and will continue such qualifications in effect for as so long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)distribution; PROVIDEDprovided, HOWEVERhowever, that the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited any consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment jurisdiction or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, any other requirements deemed by the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestbe unduly burdensome.
(f) Neither So long as any Notes are outstanding, the Company nor any will furnish to the Agents: (i) as soon as practicable after the end of each fiscal year, a copy of its officers annual report to shareholders for such year, (ii) as soon as available, a copy of each report or directors, nor its affiliates (within the meaning definitive proxy statement of the Rules Company filed with the Commission under the Exchange Act or mailed to shareholders, and Regulations)(iii) from time to time, will take, directly or indirectly, any action designed to, or which might in such other information concerning the future Company as you may reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companyrequest.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incident to the Brokerperformance of its obligations under this Agreement, and will reimburse each Agent for any expenses (including Blue Sky fees and disbursements of counsel which will not in the aggregate exceed $6,000) incurred by it in connection with qualification of the Notes for sale and determination of their eligibility for investment under the laws of such jurisdictions as such Agent may designate and the printing of memoranda relating thereto, for any filing fees charged by investment rating agencies for the rating of the Notes, for any filing fee of the National Association of Securities Dealers, Inc. relating to the Notes, and for the reasonable fees and disbursements of counsel to the Agents.
(h) Not later than 45 days after the end of the 12-Dealer during month period beginning at the Offering Period such additional documents and information regarding end of any fiscal quarter of the Company and in which the Closing Date or any other Representation Date occurs, the Company will make generally available to its affairs as security holders an earnings statement (which need not be audited) covering such 12-month period which will satisfy the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness provisions of any Section 11(a) of the conditions contained in this AgreementAct.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file To prepare the Prospectus in a form approved by KBCM and any amendment or supplement thereto with the SEC in the manner and within the time period required by to file such Prospectus pursuant to Rule 424(b) under the Act. During Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise KBCM, promptly after it receives notice thereof, of the time when a prospectus relating any amendment or supplement to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Registration Statement or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance and to furnish KBCM with said Rule 430A and when any post-effective amendment copies thereof; to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statementadvise KBCM, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to KBCM and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to KBCM such number of the following documents as KBCM shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) any Issuer Free Writing Prospectus and (D) any document incorporated by reference in any preliminary prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Securities or any other securities relating thereto and if at such time any 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 to amend or supplement the Prospectus in order to comply with the Securities Act, to notify KBCM and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as KBCM may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or KBCM, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus or any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to KBCM and counsel for the Underwriters and obtain the consent of KBCM to the filing, which consent will not be unreasonably withheld;
(f) Not to make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of KBCM;
(g) To retain in accordance with the Securities Act Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Securities Act Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplement thereto supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the institution Prospectus or threat would include an untrue statement of a material fact or omit to state any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required material fact necessary in order to qualifymake the statements therein, where practicablein the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify KBCM and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as KBCM may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(h) As soon as practicable after the Notes most recent effective date of the Registration Statement (the “Effective Date”) (it being understood that the Company shall have until at least 410 or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to deliver to KBCM an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Securities Act Regulations (including, at the option of the Company, Rule 158 of the Securities Act);
(i) Promptly from time to time to take such action as KBCM may reasonably request to qualify the Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions as KBCM may request and to comply with such laws so as to permit the Company may agree, (B) continue continuance of sales and dealings therein in such qualifications in effect jurisdictions for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)Securities; PROVIDED, HOWEVERprovided, that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation or in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers jurisdiction or (iii) subject itself to taxation in some jurisdictions any jurisdiction in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.which it would not otherwise be subject;
(dj) The Company consents to For a period commencing on the use date hereof and ending on the 90th day after the date of the Prospectus (and the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any amendment transaction or supplement thereto) device that is designed to, or could be expected to, result in the disposition by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, any person at any time when a prospectus relating in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Securities), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than options, restricted stock or other rights granted or sold pursuant to the Notes terms of the Company’s 2007 Long-Term Incentive Plan), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is required to be delivered under settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the Actregistration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any event occurs as a result other securities of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify or (4) publicly disclose the Broker-Dealer and, subject intention to Section 3(a) hereof, will prepare and file with do any of the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements theretoforegoing, in each case without the prior written consent of KBCM, on behalf of the Underwriters, and to cause each officer and director of the Company set forth on Exhibit D hereto to furnish to KBCM, prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit B hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18 day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless KBCM, on behalf of the Underwriters, waives such extension in writing; provided, however, that such extension will not apply if (i) the shares of Common Stock are “actively traded securities” (as soon as available defined in Regulation M), (ii) the Company meets the applicable requirements of paragraph (a)(1) under the Securities Act in the manner contemplated by NASD Conduct Rule 2711(f)(4), and in (iii) the provisions of NASD Conduct Rule 2711(f)(4) do not restrict the publishing or distribution of any research reports relating to the Company published or distributed by any of the Underwriters during the 15 days before or after the last day of the Lock-Up Period (before giving effect to such quantities as extension); the BrokerCompany will provide KBCM with prior notice of any such announcement that gives rise to an extension of the Lock-Dealer may reasonably request.Up Period;
(fk) Neither To apply the net proceeds from the sale of the Securities being sold by the Company nor any of its officers or directors, nor its affiliates (within the meaning as set forth in each of the Rules Pricing Disclosure Package and Regulations)the Prospectus under the caption “Use of Proceeds;”
(l) To use its best efforts to list, will subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the Nasdaq all documents and notices required in connection therewith;
(m) To engage and maintain, at its expense, a registrar and transfer agent for the Securities;
(n) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, prior to termination of the underwriting syndicate contemplated by this Agreement, (i) take, directly or indirectly, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.; and
(go) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to To comply with all of the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including provisions of any and all documentation reasonably requested regarding information undertakings in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementStatement.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsAgents that it will furnish to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents, one signed copy of the Registration Statement, including all exhibits and all documents incorporated by reference, in the form it became effective and of all amendments thereto and that, in connection with each offering of Notes, it will take the following actions:
(a) The From the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold (i) the Company will advise each Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus by means of a post-effective amendment, sticker, or supplement (except post-effective amendment, supplements, and stickers relating solely to interest rates or maturities of Notes) but not by means of incorporation of document(s) by reference into the Registration Statement or the Prospectus; (ii) the Company will afford the Agents a reasonable opportunity to comment on any such proposed post-effective amendment, sticker, or supplement; (iii) the Company will advise each Agent of the filing of any such post-effective amendment, sticker, or supplement; and (iv) the Company will (x) advise each Agent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, (y) use its best efforts to cause prevent the issuance of any such stop order, and (z) if a stop order is issued, to obtain its lifting as soon as possible.
(b) If from the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold, the Company shall determine that it is necessary to suspend solicitation of the Notes because of the occurrence of an event that results in the Prospectus either (x) including an untrue statement of a material fact or omitting to state any material fact necessary to make the statements in such Prospectus, in light of the circumstances under which they were made when such Prospectus was delivered, not misleading, or (y) failing to comply with the Act, then the Company will promptly notify each Agent to suspend solicitation of purchases of the Notes. Notwithstanding Section 4(a) if the Company shall determine to amend or supplement the Registration StatementStatement or Prospectus to correct such result, it will advise each Agent promptly and afford the Agents a reasonable opportunity to discuss and comment upon the nature of the disclosure in such amendment or supplement. Notwithstanding the foregoing, if not effective at the time of execution any notification to suspend solicitations (i) this Agreement shall be in effect and any Agent shall own any of the Notes with the intention of reselling them, or (ii) the Company has accepted an offer to purchase Notes but the related settlement has not occurred, then the Company, subject to the provisions of Section 4(a) of this Agreement, will promptly prepare and any amendments thereto, to become effective as promptly as practicable. If required, file with the Company will file the Prospectus and any Commission an amendment or supplement thereto with which will correct such statement or omission or effect such compliance.
(c) The Company, during the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, will furnish to each Agent promptly after timely filing with the Commission all documents required to be filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except those filings associated with employee benefit plans). The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance immediately notify each Agent of sales of or dealings any downgrading in the Notes in accordance with the provisions hereof and rating of the ProspectusNotes or any other debt securities of the Company, or any proposal to downgrade the rating of the Notes or any other debt securities of the Company, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), as then amended or supplemented.
(b) As soon as the Company is advised learns of such downgrading or obtains knowledge thereof, the proposal to downgrade.
(d) The Company will advise the Broker-Dealer (A) when furnish to each Agent copies of the Registration Statement, as amendedincluding all exhibits except those incorporated by reference, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied uponany related preliminary prospectus, when any related preliminary prospectus supplement, the Prospectus has been filed and all amendments and supplements to such documents, in accordance with said Rule 430A each case as soon as available and when any post-effective amendment to the Registration Statement becomes effective; in such quantities as are reasonably requested.
(Be) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and The Company will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualification of the Notes for offer sale and sale the determination of their eligibility for investment under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Agents designate and will continue such qualifications in effect for as so long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)distribution; PROVIDEDprovided, HOWEVERhowever, that the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited any consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment jurisdiction or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, any other requirements deemed by the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestbe unduly burdensome.
(f) Neither So long as any Notes are outstanding, the Company nor any will furnish to the Agents: (i) as soon as practicable after the end of each fiscal year, a copy of its officers annual report to shareholders for such year, (ii) as soon as available, a copy of each report or directors, nor its affiliates (within the meaning definitive proxy statement of the Rules Company filed with the Commission under the Exchange Act or mailed to shareholders, and Regulations)(iii) from time to time, will take, directly or indirectly, any action designed to, or which might in such other information concerning the future Company as you may reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companyrequest.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incident to the Brokerperformance of its obligations under this Agreement, and will reimburse each Agent for any expenses (including Blue Sky fees and disbursements of counsel which will not in the aggregate exceed $_____) incurred by it in connection with qualification of the Notes for sale and determination of their eligibility for investment under the laws of such jurisdictions as such Agent may designate and the printing of memoranda relating thereto, for any filing fees charged by investment rating agencies for the rating of the Notes, for any filing fee of the National Association of Securities Dealers, Inc. relating to the Notes, and for the reasonable fees and disbursements of counsel to the Agents.
(h) Not later than 45 days after the end of the 12-Dealer during month period beginning at the Offering Period such additional documents and information regarding end of any fiscal quarter of the Company and in which the Closing Date or any other Representation Date occurs, the Company will make generally available to its affairs as security holders an earnings statement (which need not be audited) covering such 12-month period which will satisfy the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness provisions of any Section 11(a) of the conditions contained in this AgreementAct.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause agrees with the Registration Statementseveral Underwriters that:
(i) If, if not effective at the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Offered Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective; . Prior to the termination of the offering of the Shares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the 17 18 applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing;
(Bii) The Company will promptly advise the Representatives (1) when the Final Prospectus shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (C4) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (5) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Offered Shares for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possible.possible the withdrawal thereof;
(ciii) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Rules and Regulationsrespective rules thereunder, the Company promptly will so shall (A) notify the Broker-Dealer andRepresentatives of such event, subject to Section 3(a(B) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (i) of this Section 6(a), an amendment or supplement to the Prospectus which will shall correct such statement or omission or an amendment which shall effect such compliance.compliance and (C) supply any supplemented Prospectus to you in such quantities as you may reasonably request;
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Representatives (to the extent unavailable on open-access public filing retrieval systems) an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(v) Upon your request, the Company shall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. The Company shall pay the expenses of printing or other production of all documents relating to the offering of the Offered Shares;
(vi) The Company will furnisharrange, without chargeif necessary, to for the Broker-Dealer or on qualification of the Offered Shares for sale under the laws of such Broker-Dealer's order, at such places jurisdictions as such Broker-Dealer the Representatives may designate, copies of each Preliminary Prospectus, will maintain such qualifications in effect so long as required for the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(f) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.distribution of
Appears in 1 contract
Samples: Underwriting Agreement (Lexington Corporate Properties Trust)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file To prepare the Prospectus in a form approved by KBCM and any amendment or supplement thereto with the SEC in the manner and within the time period required by to file such Prospectus pursuant to Rule 424(b) under the Act. During Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise KBCM, promptly after it receives notice thereof, of the time when a prospectus relating any amendment or supplement to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Registration Statement or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance and to furnish KBCM with said Rule 430A and when any post-effective amendment copies thereof; to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statementadvise KBCM, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to KBCM and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to KBCM such number of the following documents as KBCM shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) any Issuer Free Writing Prospectus and (D) any document incorporated by reference in any preliminary prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Securities or any other securities relating thereto and if at such time any 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 to amend or supplement the Prospectus in order to comply with the Securities Act, to notify KBCM and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as KBCM may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or KBCM, be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus or any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to KBCM and counsel for the Underwriters and obtain the consent of KBCM to the filing, which consent will not be unreasonably withheld;
(f) Not to make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of KBCM;
(g) To retain in accordance with the Securities Act Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Securities Act Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplement thereto supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the institution Prospectus or threat would include an untrue statement of a material fact or omit to state any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required material fact necessary in order to qualifymake the statements therein, where practicablein the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify KBCM and, upon its request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as KBCM may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(h) As soon as practicable after the Notes most recent effective date of the Registration Statement (the “Effective Date”) (it being understood that the Company shall have until at least 410 or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to deliver to KBCM an earnings statement of the Company and the Subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Securities Act Regulations (including, at the option of the Company, Rule 158 of the Securities Act);
(i) Promptly from time to time to take such action as KBCM may reasonably request to qualify the Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions as KBCM may request and to comply with such laws so as to permit the Company may agree, (B) continue continuance of sales and dealings therein in such qualifications in effect jurisdictions for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)Securities; PROVIDED, HOWEVERprovided, that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation or in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers jurisdiction or (iii) subject itself to taxation in some jurisdictions any jurisdiction in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.which it would not otherwise be subject;
(dj) The Company consents to For a period commencing on the use date hereof and ending on the 90th day after the date of the Prospectus (and the “Lock-Up Period”), not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any amendment transaction or supplement thereto) device that is designed to, or could be expected to, result in the disposition by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, any person at any time when a prospectus relating in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than the Securities), or sell or grant options, rights or warrants with respect to any shares of Common Stock or securities convertible into or exchangeable for Common Stock (other than options, restricted stock or other rights granted or sold pursuant to the Notes terms of the Company’s 2007 Long-Term Incentive Plan), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is required to be delivered under settled by delivery of Common Stock or other securities, in cash or otherwise, (3) file or cause to be filed a registration statement, including any amendments, with respect to the Actregistration of any shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any event occurs as a result other securities of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify or (4) publicly disclose the Broker-Dealer and, subject intention to Section 3(a) hereof, will prepare and file with do any of the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements theretoforegoing, in each case as soon as available without the prior written consent of KBCM, on behalf of the Underwriters, and to cause each officer and director of the Company set forth on Exhibit C hereto to furnish to KBCM, prior to the First Delivery Date, a letter or letters, substantially in the form of Exhibit B hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless KBCM, on behalf of the Underwriters, waives such quantities as the Broker-Dealer may reasonably request.extension in writing;
(fk) Neither To apply the net proceeds from the sale of the Securities being sold by the Company nor any of its officers or directors, nor its affiliates (within the meaning as set forth in each of the Rules Pricing Disclosure Package and Regulations)the Prospectus under the caption “Use of Proceeds;”
(l) To use its best efforts to list, will subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the Nasdaq all documents and notices required in connection therewith;
(m) To engage and maintain, at its expense, a registrar and transfer agent for the Securities;
(n) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, prior to termination of the underwriting syndicate contemplated by this Agreement, (i) take, directly or indirectly, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.; and
(go) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to To comply with all of the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including provisions of any and all documentation reasonably requested regarding information undertakings in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementStatement.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that, in connection with each offering of Securities:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this AgreementExecution Time, and any amendments theretoamendment thereof, to become effective as promptly as practicableeffective. If requiredPrior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is otherwise required under Rule 424(b), the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the SEC in Commission pursuant to the manner and applicable paragraph of Rule 424(b) within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating prescribed and will provide evidence satisfactory to the Notes is required to be delivered under the Act, the Representatives of such timely filing. The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Broker-Dealer Representatives (A1) when the Registration Statement, as amendedif not effective at the Execution Time, has shall have become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, (2) when the Prospectus has Final Prospectus, and any supplement thereto, shall have been filed in accordance (if required) with said the Commission pursuant to Rule 430A and 424(b) or when any post-effective Rule 462(b) Registration Statement shall have been filed with the Commission, (3) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement becomes shall have been filed or become effective; , (B4) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Final Prospectus or for any additional information; or , (C5) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (6) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possiblepossible the withdrawal thereof.
(cb) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Securities is required to be delivered under the 1933 Act, any event occurs as a result of which the Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the 1933 Act or the Rules and Regulations1934 Act or the respective rules thereunder, the Company promptly will so (1) notify the Broker-Dealer andRepresentatives of such event, subject to Section 3(a(2) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (a) of this Section 4, an amendment or supplement to the Prospectus which will correct such statement or omission or which will effect such compliancecompliance and (3) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request. Neither the Representatives' 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 5 hereof.
(c) As soon as practicable, but not later than 16 months after the date of each Terms Agreement, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Sec tion 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(d) The Company will furnish to the Representa tives signed copies of the Registration Statement, including all exhibits, in the form it became effective and, so long as delivery of a prospectus by an Underwriter or dealer may be required under the 1933 Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Company will furnisharrange for the qualifica tion of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution.
(f) During the period of five years after the date of any Terms Agreement, without chargethe Company will furnish to the Representatives and, upon request, to each of the Broker-Dealer or on such Broker-Dealer's orderother Underwriters, at such places as such Broker-Dealer may designateif any, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year, if any; and in the Company will furnish to the Representatives (i) as soon as available, a copy of each report or definitive proxy statement, if any, of the Company filed with the Commission under the 1934 Act or mailed to stockholders and (ii) from time to time, such quantities other information concerning the Company as the Broker-Dealer Representatives may reasonably request.
(fg) Neither The Company will pay all expenses incident to the performance of its obligations under this Agreement, for any filing fees or other expenses (including reasonable fees and disbursements of counsel) in connection with qualification of the Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for any fee of the National Association of Securities Dealers, Inc. in connection with its review of the offering and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(h) Until the Business Day set forth in the Terms Agreement, the Company nor will not, without the prior written consent of Credit Suisse First Boston Corporation, offer, sell or contract to sell or otherwise dispose of (or enter into any of its officers transaction which is designed to, or directorsmight reasonably be expected to, nor its affiliates result in the disposition (within whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the meaning Company or any affiliate of the Rules and RegulationsCompany or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company (other than the Securities), .
(i) The Company will not take, directly or indirectly, any action designed to, to or which has constituted or which might in the future reasonably be expected to cause or result inresult, under the 1934 Act or otherwise, in stabilization or manipulation of the price of any securities security of the Company.
(g) The Company shall furnish, to facilitate the sale or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any resale of the conditions contained in this AgreementSecurities.
Appears in 1 contract
Samples: Underwriting Agreement (Union Pacific Resources Group Inc)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Prior to the later of (i) termination of the offering of the Securities as determined by the Representative and as evidenced by written notice thereof to the Company will use its best efforts to cause from the Registration Statement, if not effective at Representative or (ii) the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If requiredClosing Date, the Company will not file the Prospectus and any amendment of the Registration Statement or supplement thereto (including the Final Prospectus but excluding any prospectus supplement relating to a subsequent issuance of securities) to the Basic Prospectus, and will not use, authorize, approve, refer to or file any Issuer Free Writing Prospectus (other than as listed on Schedule III hereto), unless the Company has furnished the Representative a copy for the Representative’s review a reasonable time prior to filing thereof. Subject to the foregoing sentence, the Company will cause the Final Prospectus to be filed with the SEC in the manner and within the time period required by Commission pursuant to Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the The Company will comply with all requirements imposed upon it by not use, authorize, approve, refer to or file any Issuer Free Writing Prospectus to which the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Representative reasonably objects. The Company will promptly advise the Broker-Dealer Representative (Ai) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Final Prospectus has shall have been filed in accordance with said the Commission pursuant to Rule 430A and 424(b), (ii) when any post-effective Issuer Free Writing Prospectus shall have been filed with the Commission, (iii) when any amendment to the Registration Statement becomes relating to the Securities shall have become effective; , (Biv) of any request made by the SEC Commission for amending any amendment of the Registration Statement, for supplementing any Preliminary Prospectus Statement or amendment of or supplement to the Final Prospectus or for any additional information; or , (Cv) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat threatening of any investigation or proceeding for that purpose and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, and . The Company will use its best all reasonable efforts to prevent the issuance of any such stop order and, if issued, to obtain the lifting thereof as soon as possiblepossible the withdrawal thereof.
(cb) The Company will (Ai) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Securities is required to be delivered under the Act (or such delivery is required but for Rule 172 under the Act), any event occurs as a result of which the Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Final Prospectus to comply with the Act or the Rules and RegulationsExchange Act or the respective rules thereunder, the Company will promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will Underwriters thereof and promptly prepare and file with the SEC an amendment Commission, subject to the Registration Statement or first sentence of paragraph (a) of this Section 4, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance, and (ii) if at any time prior to the Closing Date, any event occurs as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend or supplement the Time of Sale Information to comply with the Act or the Exchange Act or the respective rules thereunder, the Company will promptly notify the Underwriters thereof and promptly prepare and file with the Commission (to the extent required), subject to the first sentence of paragraph (a) of this Section 4, and furnish to the Underwriters and to such dealers as the Representative may designate, such amendments or supplements to the Time of Sale Information which will correct such statement or omission or which will effect such compliance.
(c) The Company will make generally available within the meaning of Section 11(a) of the Act to its securityholders an earning statement, which need not be audited, covering a twelve- month period commencing after the date of this Agreement and ending not later than 15 months thereafter as soon as practicable following the end of such period, which earning statement shall satisfy the provisions of Section 11(a) of the Act and may consist of earning statements covering successive fiscal quarters.
(d) The Company will furnish to the Representative and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (or such delivery is required but for Rule 172 under the Act), as many copies of the Final Prospectus and any amendments thereof and supplements thereto and each Issuer Free Writing Prospectus as the Representative may reasonably request. The Company will pay the expenses of printing all documents relating to the offering unless otherwise agreed with the Representative.
(e) The Company will furnish, without charge, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representative may reasonably designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to the Broker-Dealer service of process in suits, other than those arising out of the offering or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies sale of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements theretoSecurities, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestany jurisdiction where it is not now so subject.
(f) Neither Until the Business Day following the Closing Date, the Company nor any of its officers or directorswill not, nor its affiliates (within without the meaning prior consent of the Rules and Regulations)Representative, will takeoffer, directly or indirectlysell, any action designed tocontract to sell, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price otherwise dispose of any debt securities of the CompanyCompany which mature more than one year following the Closing Date and which are substantially similar to the Securities.
(g) The Company shall furnishwill, or cause pursuant to be furnishedreasonable procedures developed in good faith, or make available, or cause to be made available, to retain copies of each Issuer Free Writing Prospectus that is not filed with the Broker-Dealer during Commission in accordance with Rule 433 under the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementAct.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect as long as requested by the Representatives for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act Regulations; during the period beginning on the date hereof and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement or Prospectus which shall be disapproved by the Representatives promptly after reasonable notice thereof; 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 effectiveeffective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; (Bto file promptly, and in any event within the time periods specified, all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of any request made the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the SEC for amending Commission of any stop order or of any order preventing or suspending the Registration Statement, for supplementing use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; or (C) and, in the event of the issuance by the SEC of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purposesuch qualification, and will promptly to use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus (and in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representatives and upon their request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representatives may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation 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 request of the Representatives but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representatives may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and any pre-effective or post-effective amendments thereto its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the ProspectusSecurities Act Regulations (including, and all amendments and supplements theretoat the option of the Company, in each case as soon as available and in such quantities as Rule 158 under the Broker-Dealer may reasonably requestSecurities Act).
(f) Neither During the Company nor any of its officers or directors, nor its affiliates (within period beginning from the meaning date hereof and continuing to and including the date 180 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee equity compensation plans existing on the date of this Agreement (including the 2000 Equity Incentive Plan for Employees of Wxxxxx E&P, Inc, the 2001 Stock Incentive Plan and the 2001 Key Employee Stock Incentive Plan), or the exercise of any options or warrants disclosed as outstanding in the Registration Statement and the Prospectus), without the prior written consent of McDonald Investments Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 180 day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 180 day restricted period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the 180 day period, the restrictions imposed in this Section 3(e) shall continue to apply until the expiration of the 18 day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(g) During a period of five years from the effective date of the Registration Statement, to deliver or make available to the Representatives as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission, the NASD or any national securities exchange on which any class of securities of the Company is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and, for so long as the Company remains a reporting company under the Exchange Act, to use its best efforts to maintain such listing or a listing on the Nasdaq SmallCap Market, the American Stock Exchange or New York Stock Exchange, or any similar national exchange or quotation system for at least five years from the First Delivery Date.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The To cause each 1% or greater stockholder, officer and director of the Company to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of the Representatives on behalf of the Underwriters;
(m) If at any time during the 45-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall furnishoccur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or cause is likely to be furnishedmaterially affected (regardless of whether such rumor, publication or make available, event necessitates a supplement to or cause amendment of the Prospectus) and after written notice from the Representatives advising the Company to be made availablethe effect set forth above, to forthwith prepare, consult with the Broker-Dealer during Representatives concerning the Offering Period substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such additional documents and information regarding rumor, publication or event.
(n) To comply with all of the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including provisions of any and all documentation reasonably requested regarding information undertakings in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementStatement.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts file the Prospectus with the Commission pursuant to cause the Registration Statementand in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5)) not effective at later than the time of second business day following the execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the The Company will file advise the Prospectus and Representatives promptly of any amendment or supplement thereto with the SEC in the manner and within the time period required by such filing pursuant to Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented).
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will not effect such amendment or for additional information; or (C) supplementation without the consent of the issuance Representatives; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, any event 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 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the consent of the Representatives to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than 16 months after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, in the form it became effective (A) take two of which will be signed and will include all exhibits), each related preliminary prospectus or cause preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be taken delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Representatives reasonably request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such actions documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes determination of their eligibility for offer and sale investment under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Representatives reasonably designate and will continue such qualifications in effect for as so long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth distribution; provided that in clauses (A) and (B); PROVIDED, HOWEVER, that connection therewith the Company shall not be required to qualify as a foreign corporation or file to take any action that would subject it to a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(dg) The Company consents to During the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulationsfive years hereafter, the Company promptly will so notify furnish to the Broker-Dealer Representatives and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without chargeupon request, to each of the Broker-Dealer or on such Broker-Dealer's orderother Underwriters, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and in the Company will furnish to the Representatives (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such quantities other information concerning the Company as the Broker-Dealer Representatives may reasonably request.
(fh) Neither The Company will pay all expenses incident to the performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and the printing of memoranda relating thereto, for the filing fee incident to the review, if any, by the National Association of Securities Dealers, Inc. of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company nor any of its officers in connection with attending or directors, nor its affiliates (within the meaning hosting meetings with prospective purchasers of the Rules Offered Securities, for the fees and Regulations)expenses of counsel for the Underwriters in an amount not to exceed $75,000, and for expenses incurred in distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters.
(i) Except as contemplated under this Agreement, the Company will takenot offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any action designed to, or which might in file with the future reasonably be expected Commission a registration statement under the Act relating to cause debt securities issued or result in, stabilization or manipulation of the price of any securities of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding guaranteed by the Company and its affairs as having a maturity of more than one year from the Broker-Dealer may from time date of issue, or publicly disclose the intention to time reasonably requestmake any such offer, including any and all documentation reasonably requested regarding information in sale, pledge, disposition or filing, without the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any prior written consent of the conditions contained in Representatives for a period beginning at the date of this AgreementAgreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives. The Representatives will promptly notify the Company of the lifting of such trading restrictions.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsAgents that it will furnish to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents, one signed copy of the Registration Statement, including all exhibits and all documents incorporated by reference, in the form it became effective and of all amendments thereto and that, in connection with each offering of Notes, it will take the following actions:
(a) The From the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold (i) the Company will advise each Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus by means of a post-effective amendment, sticker, or supplement (except post-effective amendment, supplements, and stickers relating solely to interest rates or maturities of Notes) but not by means of incorporation of document(s) by reference into the Registration Statement or the Prospectus; (ii) the Company will afford the -5- Agents a reasonable opportunity to comment on any such proposed post-effective amendment, sticker, or supplement; (iii) the Company will advise each Agent of the filing of any such post-effective amendment, sticker, or supplement; and (iv) the Company will (x) advise each Agent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, (y) use its best efforts to cause prevent the issuance of any such stop order, and (z) if a stop order is issued, to obtain its lifting as soon as possible.
(b) If from the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold, the Company shall determine that it is necessary to suspend solicitation of the Notes because of the occurrence of an event that results in the Prospectus either (x) including an untrue statement of a material fact or omitting to state any material fact necessary to make the statements in such Prospectus, in light of the circumstances under which they were made when such Prospectus was delivered, not misleading, or (y) failing to comply with the Act, then the Company will promptly notify each Agent to suspend solicitation of purchases of the Notes. Notwithstanding Section 4(a) if the Company shall determine to amend or supplement the Registration StatementStatement or Prospectus to correct such result, it will advise each Agent promptly and afford the Agents a reasonable opportunity to discuss and comment upon the nature of the disclosure in such amendment or supplement. Notwithstanding the foregoing, if not effective at the time of execution any notification to suspend solicitations (i) this Agreement shall be in effect and any Agent shall own any of the Notes with the intention of reselling them, or (ii) the Company has accepted an offer to purchase Notes but the related settlement has not occurred, then the Company, subject to the provisions of Section 4(a) of this Agreement, will promptly prepare and any amendments thereto, to become effective as promptly as practicable. If required, file with the Company will file the Prospectus and any Commission an amendment or supplement thereto with which will correct such statement or omission or effect such compliance.
(c) The Company, during the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, will furnish to each Agent promptly after timely filing with the Commission all documents required to be filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except those filings associated with employee benefit plans). The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance immediately notify each Agent of sales of or dealings any downgrading in the Notes in accordance with the provisions hereof and rating of the ProspectusNotes or any other debt securities of the Company, or any proposal to downgrade the rating of the Notes or any other debt securities of the Company, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), as then amended or supplemented.
(b) As soon as the Company is advised learns of such downgrading or obtains knowledge thereof, the proposal to downgrade.
(d) The Company will advise the Broker-Dealer (A) when furnish to each Agent copies of the Registration Statement, as amendedincluding all exhibits except those incorporated by reference, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied uponany related preliminary prospectus, when any related preliminary prospectus supplement, the Prospectus has been filed and all amendments and supplements to such documents, in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; each case as soon as
(Be) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and The Company will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualification of the Notes for offer sale and sale the determination of their eligibility for investment under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Agents designate and will continue such qualifications in effect for as so long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)distribution; PROVIDEDprovided, HOWEVERhowever, that the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited any consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment jurisdiction or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, any other requirements deemed by the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestbe unduly burdensome.
(f) Neither So long as any Notes are outstanding, the Company nor any will furnish to the Agents: (i) as soon as practicable after the end of each fiscal year, a copy of its officers annual report to shareholders for such year, (ii) as soon as available, a copy of each report or directors, nor its affiliates (within the meaning definitive proxy statement of the Rules Company filed with the Commission under the Exchange Act or mailed to shareholders, and Regulations)(iii) from time to time, will take, directly or indirectly, any action designed to, or which might in such other information concerning the future Company as you may reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companyrequest.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incident to the Brokerperformance of its obligations under this Agreement, and will reimburse each Agent for any expenses (including Blue Sky fees and disbursements of counsel which will not in the aggregate exceed $6,000) incurred by it in connection with qualification of the Notes for sale and determination of their eligibility for investment under the laws of such jurisdictions as such Agent may designate and the printing of memoranda relating thereto, for any filing fees charged by investment rating agencies for the rating of the Notes, for any filing fee of the National Association of Securities Dealers, Inc. relating to the Notes, and for the reasonable fees and disbursements of counsel to the Agents.
(h) Not later than 45 days after the end of the 12-Dealer during month period beginning at the Offering Period such additional documents and information regarding end of any fiscal quarter of the Company and in which the Closing Date or any other Representation Date occurs, the Company will make generally available to its affairs as security holders an earnings statement (which need not be audited) covering such 12-month period which will satisfy the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness provisions of any Section 11(a) of the conditions contained in this AgreementAct.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect as long as requested by the Representatives for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act Regulations; during the period beginning on the date hereof and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement or Prospectus which shall be disapproved by the Representatives promptly after reasonable notice thereof; 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 effectiveeffective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; (Bto file promptly, and in any event within the time periods specified, all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of any request made the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the SEC for amending Commission of any stop order or of any order preventing or suspending the Registration Statement, for supplementing use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; or (C) and, in the event of the issuance by the SEC of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purposesuch qualification, and will promptly to use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus (and in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representatives and upon their request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representatives may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation 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 request of the Representatives but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representatives may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and any pre-effective or post-effective amendments thereto its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the ProspectusSecurities Act Regulations (including, and all amendments and supplements theretoat the option of the Company, in each case as soon as available and in such quantities as Rule 158 under the Broker-Dealer may reasonably requestSecurities Act).
(f) Neither During the Company nor any of its officers or directors, nor its affiliates (within period beginning from the meaning date hereof and continuing to and including the date 180 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee equity compensation plans existing on the date of this Agreement (including the 2000 Equity Incentive Plan for Employees of Wxxxxx E&P, Inc, the 2001 Stock Incentive Plan and the 2001 Key Employee Stock Incentive Plan), or the exercise of any options or warrants disclosed as outstanding in the Registration Statement and the Prospectus), without the prior written consent of MxXxxxxx Investments Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 180 day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 180 day restricted period, the Company announces that it will release earnings results during the 16 day period beginning on the last day of the 180 day period, the restrictions imposed in this Section 3(e) shall continue to apply until the expiration of the 18 day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(g) During a period of five years from the effective date of the Registration Statement, to deliver or make available to the Representatives as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission, the NASD or any national securities exchange on which any class of securities of the Company is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and, for so long as the Company remains a reporting company under the Exchange Act, to use its best efforts to maintain such listing or a listing on the Nasdaq SmallCap Market, the American Stock Exchange or New York Stock Exchange, or any similar national exchange or quotation system for at least five years from the First Delivery Date.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The To cause each 1% or greater stockholder, officer and director of the Company to furnish to the Representatives, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of the Representatives on behalf of the Underwriters;
(m) If at any time during the 45-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall furnishoccur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or cause is likely to be furnishedmaterially affected (regardless of whether such rumor, publication or make available, event necessitates a supplement to or cause amendment of the Prospectus) and after written notice from the Representatives advising the Company to be made availablethe effect set forth above, to forthwith prepare, consult with the Broker-Dealer during Representatives concerning the Offering Period substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such additional documents and information regarding rumor, publication or event.
(n) To comply with all of the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including provisions of any and all documentation reasonably requested regarding information undertakings in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementStatement.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement becomes effective; (B) to be declared effective before the offering of any request made the Securities may commence, to endeavor to cause such post-effective amendment to become effective as soon as possible and to advise the Representative promptly and, if requested by the SEC Representative, to confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act Regulations; during the period beginning on the date of this Agreement and ending on the date, which in the opinion of counsel for amending the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration StatementStatement or Prospectus, for supplementing which shall be disapproved by the Representative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time when any Preliminary Prospectus 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 the Representative with copies thereof; to file promptly and, in any event, within the time periods specified all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for additional informationso long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required in connection with the offering or sale of the Securities; or (C) to advise the Representative, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment other prospectus in respect of the Securities, of the suspension of the qualification of the Securities for offering or supplement thereto sale in any jurisdiction, of the initiation or the institution or threat threatening of any investigation or proceeding for that any such purpose, and will use its best efforts to prevent 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 the Prospectus or other prospectus or suspending any such order andqualification, if issued, promptly to use its reasonable best efforts to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus in such quantities as the Representative may reasonably request and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act Regulations) is delivered, not misleadingmisleading or, or if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which that will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) 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 request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders via XXXXX within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and any pre-effective or post-effective amendments thereto its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the ProspectusSecurities Act Regulations (including, and all amendments and supplements theretoat the option of the Company, in each case as soon as available and in such quantities as Rule 158 under the Broker-Dealer may reasonably requestSecurities Act).
(f) Neither During the Company nor any period beginning from the date of its officers or directors, nor its affiliates (within this Agreement and continuing to and including the meaning date 90 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of McDonald Investments Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this Section 3(f) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement referred to in the Prospectus.
(g) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via XXXXX to the Representative promptly after they become available copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the “NASD”) or any national securities exchange on which the Common Stock is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Time of Sale Prospectus under the caption “Use of Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on AMEX prior to the First Delivery Date and to maintain such listing and to file with AMEX all documents and notices required in connection therewith.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The Company To cause each person listed on Schedule C hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule B hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule C hereto shall be entitled to transfer and assign shares of Common Stock (1) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an “Entity”), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (2) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person’s spouse or members of such person’s immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule B hereto prior to time reasonably request, including any and such transfer.
(m) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(n) If the Company elects to rely upon Rule 462(b) under the Securities Act Regulations, to file a Rule 462(b) Registration Statement and with the Prospectus and Commission in order to evidence compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the accuracy or completeness date of any of the conditions contained in this Agreement, and at the time of filing to 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 Regulations.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file To prepare the Prospectus in a form approved by the Representatives and any amendment or supplement thereto with the SEC in the manner and within the time period required by to file such Prospectus pursuant to Rule 424(b) under the Act. During any 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 when a prospectus relating to the Notes is as may be required to be delivered by Rule 430A(a)(3) under the Act, ; to make no further amendment or any supplement to the Company will comply with all requirements imposed upon it Registration Statement or Prospectus which shall be disapproved by the Act and Representatives promptly after reasonable notice thereof; to advise the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and Representatives, promptly after it receives notice thereof, of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and time when any post-effective amendment to the Registration Statement has been filed or becomes effective; (B) of effective or any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or supplement to the Prospectus or for additional informationany amended Prospectus has been filed and to furnish the Representatives with copies thereof; or (C) to advise the Representatives, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or any amendment or supplement thereto or for additional information; and, in the institution or threat event of the issuance of any investigation stop order or proceeding for that purposeof any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, and will promptly to use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possiblewithdrawal of such order.
(cb) The Company will (A) Promptly from time to time to take or cause such action as the Representatives may reasonably request to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualify the Notes Securities for offer offering and sale under the state securities or blue sky laws of such U.S. jurisdictions as the Company Representatives may agree, (B) continue request and to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect such jurisdictions for as long as may be necessary to complete the distribution of the NotesSecurities, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth provided that in clauses (A) and (B); PROVIDED, HOWEVER, that connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(dc) The Company consents Prior to 10:00 A.M., New York City time, on the use 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 Prospectus (and in New York City in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsAct, the Company promptly will so to notify the Broker-Dealer and, subject Representatives and upon the Representatives’ request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representatives may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment 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 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 Representatives’ request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representatives may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act.
(d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158).
(e) The Company will furnish, without charge, To furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash 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 fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in such quantities as the Broker-Dealer may reasonably requestreasonable detail.
(f) Neither If not otherwise available on EXXXX or a similar system, during a period of three years from the Company nor any of its officers or directors, nor its affiliates (within the meaning effective date of the Rules Registration Statement, to furnish to the Representatives copies of all reports or other communications (financial or other) furnished to stockholders, and Regulations)to deliver to the Representatives (i) as soon as they are available, will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price 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.
Company is listed; and (gii) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents information concerning the business and information regarding financial condition of the Company and its affairs as the Broker-Dealer Representatives may from time to time reasonably requestrequest (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission).
(g) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus (the initial “Lock-Up Period”), not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Securities, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Securities or any such substantially similar securities (other than (i) pursuant to 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) on and all documentation reasonably requested regarding information after the 91st day after the date hereof, the offer or sale of Securities in connection with the acquisition of a company, asset or business, provided that the aggregate market value of such securities may not exceed 5% of the market capitalization of the Company as of the date hereof and, in the Registration Statement case of each of clauses (i) and (ii), the recipients of such shares of Securities agree to be bound by the restrictions contained in this paragraph), without prior written consent of the Representatives; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces material news or a material event 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 automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable, unless the Representatives waive, in writing, such extension. The Company will provide the Representatives and any co-managers and each stockholder subject to the Lock-Up Period pursuant to the lock-up agreements described in Section 6(g) with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption “Use of Proceeds”.
(i) The Company will pay all expenses incident to its performance of the obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, for the filing fee incident to the review by the National Association of Securities Dealers, Inc. of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing preliminary prospectuses and the Prospectus (including any amendments and in order supplements thereto) to evidence the accuracy or completeness of any of the conditions contained in this AgreementUnderwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Ssa Global Technologies, Inc)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsUnderwriter:
(a) The Company will use its best efforts (i) to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required and otherwise to cooperate in order to qualify, where practicable, qualifying the Notes Offered Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions states as the Company Underwriter may agree, (B) continue designate and to maintain such qualifications in effect for as so long as may be necessary to complete required for the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)Offered Securities; PROVIDED, HOWEVER, provided that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of the process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Offered Securities); and (ii) to promptly advise the Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such jurisdiction. The Broker-Dealer acknowledges purpose;
(b) to make available to the Underwriter, as soon as practicable after the execution and agrees that delivery of this Underwriting Agreement, and thereafter from time to time to furnish to the Underwriter, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriter may impose special minimum suitability standards on Purchasers reasonably request for the purposes contemplated by the Act; in some jurisdictions case the Underwriter is required to deliver a prospectus after the nine-month period referred to in order Section 10(a)(3) of the Act in connection with the sale of the Offered Securities, the Company will prepare promptly upon request such amendment or amendments to obtain qualifications therein the Registration Statement and that Brokersuch prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter), (i) when any post-Dealer must comply therewith in soliciting subscriptions from Purchasers. The effective amendment to the Registration Statement becomes effective and (ii) when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to promptly notify the Broker-Dealer of any file in a timely manner under such special standards.Rule);
(d) The Company consents to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter), of any request by the Commission for amendments or supplements to the use Registration Statement or the Prospectus or for additional information with respect thereto, or notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every commercially reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and, for so long as the delivery of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, is required in connection with the offering offer or sale of the Notes and Offered Securities, to file no such amendment or supplement to which the Underwriter shall object in writing;
(e) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) of the Act;
(f) (i) to the extent not publicly filed, to furnish to the Underwriter for such a period of time thereafter two (2) years from the date of this Underwriting Agreement copies of any reports or other communications which the Company shall send to its stockholders and (ii) such other information publicly disclosed by the Company as the Underwriter may reasonably request regarding the Company, in each case as soon as reasonably practicable after such reports, communications, documents or information become available, or are requested by the Underwriter;
(g) to advise the Underwriter promptly of the happening of any event known to the Company within the time during which a Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct which would require the making of any change in the Prospectus then being used, any event occurs as a result of which so that the Prospectus, as then amended or supplemented, Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein therein, in the light of the circumstances under which they are made, not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer misleading and, subject during such time, to Section 3(a) hereof, will prepare and file with furnish, at the SEC an amendment Company’s expense, to the Registration Statement Underwriter promptly such amendments or an supplements to such Prospectus as may be necessary to reflect any such change and to furnish the Underwriter a copy of such proposed amendments or supplements before filing any such amendment or supplement to with the Prospectus which will correct such statement or omission or effect such compliance.Commission;
(eh) The Company will furnish, without charge, to furnish the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Underwriter five (5) conformed copies of each Preliminary Prospectus, the Initial Registration Statement and any pre-effective or post-effective of all amendments thereto (including all exhibits thereto);
(i) to apply the net proceeds from the sale of the Offered Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus;
(j) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each preliminary prospectus, the Prospectus, and all any amendments and or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriter (including costs of mailing and shipment), (ii) the registration, issuance, sale and delivery of the Offered Securities, (iii) the printing of this Underwriting Agreement, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriter (including costs of mailing and shipment), (iv) the qualification of the Offered Securities for offering and sale under state and foreign laws and the determination of their eligibility for investment under state and foreign laws as aforesaid (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriter) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriter, (v) any listing of the Offered Securities on any securities exchange or qualification of the Offered Securities for quotation on the Nasdaq National Market and any registration thereof under the Exchange Act, (vi) review of the public offering of the Offered Securities by the NASD (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriter), (vii) the costs and expenses of the Company relating to presentations or meeting undertaken in each case connection with the marketing of the offer and sale of the Offered Securities to prospective investors and the Underwriter’s sales force, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show and (viii) the performance of the other obligations of the Company hereunder; provided, however, that except as soon as available otherwise set forth in this Underwriting Agreement, the Underwriter shall pay its own costs and in such quantities expenses, including the costs and expenses of counsel for the Underwriter;
(k) for so long as the Broker-Dealer may delivery of the Prospectus is required in connection with the offer or sale of the Offered Securities, to furnish to the Underwriter a reasonable period of time before filing with the Commission a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and to not make any filing to which the Underwriter reasonably request.objects;
(fl) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will to not take, directly or indirectly, any action designed to, to or which may constitute or which might in the future reasonably be expected to cause or result inresult, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any securities security of the Company.Company to facilitate the sale or resale of the Offered Securities;
(gm) The Company not to, during the Lock-Up Period, without the prior written consent of Pacific Growth Equities, LLC, effect the Disposition of, directly or indirectly, any Securities other than the sale of the Offered Securities hereunder; provided that nothing in this Underwriting Agreement shall furnishprevent the Company’s issuance of equity securities under the Company’s currently authorized equity incentive plans, including its employee stock purchase plan, or cause upon exercise of outstanding equity awards;
(n) to file timely all reports and any definitive proxy or information statement required to be furnished, or make available, or cause filed by the Company with the Commission in order to be made available, comply with the Exchange Act and the Rules and Regulations subsequent to the Broker-Dealer during date of the Offering Period such additional documents Prospectus and information regarding the Company and its affairs for so long as the Brokerdelivery of a prospectus is required in connection with the offering or sale of the Offered Securities, and to promptly notify the Underwriter of such filing;
(o) if, at the time this Underwriting Agreement is executed and delivered, it is necessary for a post-Dealer may from time effective amendment to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and or an additional registration statement to be declared effective before the Prospectus and in order to evidence the accuracy or completeness of any offering of the conditions contained Offered Securities may commence, the Company will endeavor to cause such post-effective amendment or additional registration statement to become effective as soon as possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in this Agreementwriting, when such post-effective amendment or additional registration statement has become effective; and
(p) to use all commercially reasonable efforts to maintain the quotation of the Offered Securities on the Nasdaq National Market and to file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have securities traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
Appears in 1 contract
Samples: Underwriting Agreement (La Jolla Pharmaceutical Co)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts Prior to cause the Registration Statement, if not effective at termination of the time offering of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If requiredthe Offered Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Prospectus Supplement or any Preliminary Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Prospectus Supplement, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the SEC in Commission pursuant to the manner and applicable paragraph of Rule 424(b) within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating prescribed and will provide evidence satisfactory to the Notes is required to be delivered under the Act, the Representative of such timely filing. The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Broker-Dealer Representative (Ai) when the Registration StatementProspectus Supplement and any supplement thereto, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has shall have been filed in accordance (if required) with said the Commission pursuant to Rule 430A and when 424(b), (ii) when, prior to termination of the offering of the Offered Securities, any post-effective amendment to the Registration Statement becomes shall have been filed or become effective; , (Biii) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus Supplement or for any additional information; or , (Civ) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto notice objecting to its use or the institution or threat threatening of any investigation or proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, if issuedupon such issuance, occurrence or notice of objection, to obtain the lifting thereof as soon as possiblepossible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) At any time when the Prospectus is required to be delivered under the Act (except as provided by Rule 172(b) under the Act), the Exchange Act and the Rules and Regulations in connection with sales of the Offered Securities, the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the Act, the Exchange Act or otherwise, and will furnish to the Representative, without charge, 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 documents to which the Representative or counsel for the Underwriters shall reasonably object.
(c) The Company agrees to pay the required Commission filing fees relating to the Offered Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) The Company will furnish to the Representative copies of the Registration Statement (Atwo of which will be signed and will include all exhibits thereto and documents incorporated by reference), and, will furnish to the Underwriters in New York City, without charge, prior to 10:00 A.M. Eastern Daylight Time on the second business day next following the execution and delivery of this Agreement and during the period mentioned in Section 7(e) take below, as many copies of the General Disclosure Package and Prospectus and any supplements and amendments thereto or cause to be taken all such actions and furnish all such the Registration Statement as the Representative may reasonably request.
(e) If at any time following the date hereof there occurs an event or development as a result of which an Issuer Free Writing Prospectus conflicts or would conflict with the information as may be reasonably required contained in the Registration Statement, the General Disclosure Package, or the Prospectus or includes or would include an untrue statement of a material fact or omits or would omit to state a material fact necessary in order to qualify, where practicablemake the statements therein not misleading, the Notes Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement, or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with information relating to any Underwriter furnished to the Company by any Underwriter through the Representative specifically for offer use therein, it being understood and agreed that the only such information is that described as such in Section 9(b) hereof.
(f) If, during such period after the first date of the public offering of the Offered Securities, the Prospectus or the General Disclosure Package is required by law to be delivered in connection with sales by any Underwriter or dealer (except as provided by Rule 172(b) under the Act), any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package or the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading when the General Disclosure Package or Prospectus is delivered to a purchaser, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus and the General Disclosure Package to comply with applicable law the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and to any other dealers (whose names and addresses the Representative will furnish to the Company) to which the Offered Securities may have either been sold by or on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus and the General Disclosure Package which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representative’s consent to or delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 8.
(g) The Company will arrange for the qualification of the Offered Securities for sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Representative designates and will continue such qualifications in effect for as so long as may be necessary to complete required for the distribution of the NotesOffered Securities by the Underwriters, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, provided that the Company shall will not be required to qualify as a foreign corporation or to file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsstate.
(dh) The Company consents will make generally available to its securityholders no later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Act) covering the twelve month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement which will satisfy the provisions of Section 11(a) of 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 use performance of the Prospectus Company’s obligations under this Agreement, including: (i) the fees, disbursements and any amendment or supplement thereto) by expenses of the Broker-Dealer, Company’s counsel and the Company’s accountants in connection with the offering registration and delivery of the Offered Securities under the Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Prospectus, the General Disclosure Package and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Representative and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Offered Securities to the Representative, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky memorandum in connection with the offer and sale of the Notes Offered Securities under state securities laws and for such period of time thereafter as the Prospectus is required by law to be delivered all expenses in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or qualification of the Rules Offered Securities for offer and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to sale under state securities laws as provided in Section 3(a7(g) hereof, will prepare including filing fees and file the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the SEC an amendment Blue Sky or memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Registration Statement Underwriters (up to $5,000 in the aggregate) incurred in connection with the review and qualification of the offering of the Offered Securities by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Underlying Securities on the NYSE, (vi) the cost of printing certificates representing the Offered Securities, (vii) the costs and charges of any transfer agent, registrar or an amendment depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the production of road show slides and graphics, reasonable travel and lodging expenses of the Representative and officers of the Company and any other expenses of the Company in connection with attending or supplement hosting meetings with prospective purchasers of the Offered Securities (including fifty percent (50%) of the cost of any private aviation), (ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the Prospectus performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section and Section 9 entitled “Indemnification and Contribution,” the Underwriters will correct such statement or omission or effect such compliancepay all of their costs and expenses, including fees and disbursements of its counsel, stock transfer taxes payable on resale of any of the Offered Securities by it and any advertising expenses connected with any offers they may make.
(ej) The Company will furnishcomply with all applicable securities and other applicable laws, rules and regulation, including, without chargelimitation, the Xxxxxxxx-Xxxxx Act, and use its commercially reasonable efforts to cause the Company’s directors and officers, in their capacities as such, to the Broker-Dealer or on comply with such Broker-Dealer's orderlaws, at such places as such Broker-Dealer may designaterules and regulations, copies of each Preliminary Prospectusincluding, without limitation, the Registration Statement and any preprovisions of the Xxxxxxxx-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestXxxxx Act.
(fk) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds.”
(l) The Company will cooperate with the Underwriters and use its best efforts to permit the Offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(m) For a period of 90 days after the date of this Agreement, the Company will not, without the prior written consent of the Representative on behalf of the Underwriters, (i) offer, pledge, announce the intention to sell, 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, or file with the Commission a registration statement under the Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to make any such offer, sale pledge, disposition or filing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, other than (1) the Offered Securities to be sold hereunder, (2) grants of stock options, shares of restricted stock and other awards pursuant to the terms of any Company employee benefit plan described in the Prospectus and the General Disclosure Package, (3) issuances of Common Stock pursuant to the exercise of options or restricted stock units, or (4) issuances of Common Stock pursuant to the Company’s dividend reinvestment and stock purchase plan in effect on the date of this Agreement and described in the Prospectus and the General Disclosure Package. Notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(n) Neither the Company nor any of its officers or directors, nor its affiliates (within will take any action prohibited under Regulation M under the meaning Exchange Act in connection with the distribution of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the CompanyOffered Securities contemplated hereby.
(go) The Company shall furnish, or cause will use its best efforts to be furnished, or make available, or cause to be made available, to have the Broker-Dealer during Offered Securities listed on the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementNYSE.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts Compliance with Securities Regulations and Commission Requests. (A) To prepare the Prospectus in a form approved by you and to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus with the Commission within the time periods specified by Rule 424(b) of the Act; (B) to file promptly all reports required to be filed by the Company with the Commission pursuant to the applicable provisions 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 ADSs; (C) to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Closing Date which shall be disapproved by you promptly after reasonable notice thereof; (D) to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance and to furnish you with said copies thereof; (E) to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 430A 433(d) under the Act; to furnish electronic copies of the Prospectus and when any post-effective amendment each Issuer Free Writing Prospectus (to the Registration Statement becomes effectiveextent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Underwriters may reasonably request; (BF) of any request made by the SEC for amending the Registration Statementto advise you, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order or of any order preventing or suspending the effectiveness use of the Registration Statement or any post-effective amendment thereto thereto, any Preliminary Prospectus or other prospectus in respect of the ADSs, of the suspension of the qualification of the ADSs for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose; (G) of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, (H) in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus other prospectus or suspending any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purposesuch qualification, and will to promptly use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.withdrawal of such order;
(cb) The Company will (A) Blue Sky Qualifications. Promptly from time to time to take or cause such action as the Representatives may reasonably request to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualify the Notes ADSs for offer offering and sale under the state securities or blue sky laws of such jurisdictions as the Company Representatives may agree, (B) continue request and to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect such jurisdictions for as long as may be necessary to complete the distribution of the NotesADSs, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth provided that in clauses (A) and (B); PROVIDED, HOWEVER, that connection therewith the Company shall not be required to (i) qualify as a foreign corporation or in any jurisdiction, (ii) to file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers jurisdiction or (iii) subject itself to taxation in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or jurisdiction if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will is not otherwise so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(f) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.subject;
Appears in 1 contract
Samples: Underwriting Agreement (iQIYI, Inc.)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts file the Prospectus with the Commission pursuant to cause the Registration Statementand in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not effective at to be unreasonably withheld or delayed) not later than the time of second business day following the execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and RegulationsAct, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment to the Registration Statement or Commission, at its own expense, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary Prospectus, the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any pre-effective related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or post-effective amendments thereto and dealer, the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably Representatives request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Neither The Company will arrange for the Company nor any of its officers or directors, nor its affiliates (within the meaning qualification of the Rules Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and Regulations), will take, directly or indirectly, any action designed to, or which might continue such qualifications in effect so long as required for the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companydistribution.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incident to the Broker-Dealer during performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offering Period Offered Securities for sale under the laws of such additional documents and information regarding the Company and its affairs jurisdictions as the Broker-Dealer may from time to time reasonably requestRepresentatives designate and the printing of memoranda relating thereto, including any and all documentation reasonably requested regarding information for expenses incurred in the Registration Statement distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters.
(h) For a period of 90 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Xxxxxx except grants of employee stock options pursuant to the terms of a plan in order effect on the date hereof and issuances of Common Stock pursuant to evidence the accuracy exercise of options, preferred stock or completeness of any warrants outstanding on the date of the conditions contained in this Agreementinitial offering of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts file the Prospectus with the Commission pursuant to cause the Registration Statementand in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not effective at to be unreasonably withheld or delayed) not later than the time of second business day following the execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and RegulationsAct, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment to the Registration Statement or Commission, at its own expense, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ [[NYCORP:2535777v10:3639B:09/08/05--09:48 p]] consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary Prospectus, the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any pre-effective related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or post-effective amendments thereto and dealer, the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably Representatives request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Neither The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution.
(g) During the period of five years hereafter, the Company nor any will furnish to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its officers or directorsannual report to stockholders for such year; and the Company will furnish to the Representatives and, nor its affiliates (within the meaning upon request, to each of the Rules other Underwriters (i) as soon as available, a copy of each report and Regulations)any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request other than documents filed and available on the SEC XXXXX system.
(h) The Company will takepay all expenses incidental to the performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, and for expenses incurred in distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters; provided that on the First Closing Date, the Underwriters (acting collectively) will reimburse the Company for up to $100,000 of expenses incurred by the Company in the performance of its obligations under this Agreement.
(i) For a period of 90 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any action designed or file with the Commission a registration statement under the Act relating to, any additional shares of its common stock or which might securities convertible into or exchangeable or exercisable for any shares of its common stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Xxxxxx except (i) grants of employee and director stock options or restricted stock pursuant to the terms of a plan in effect on the future reasonably be expected date hereof, (ii) issuances of common stock pursuant to cause the exercise of options, preferred stock or result in, stabilization or manipulation warrants outstanding on the date of the price of any securities initial offering of the Company.
Offered Securities and (giii) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Brokerissuances of [[NYCORP:2535777v10:3639B:09/08/05-Dealer during the Offering Period such additional documents and information regarding -09:48 p]] common stock in exchange for preferred stock of the Company and its affairs as outstanding on the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any date of the conditions contained in this Agreementinitial offering of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause agrees with the Registration StatementUnderwriter that:
(i) If, if not effective at the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Offered Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective; . Prior to the termination of the offering of the Offered Shares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing;
(Bii) The Company will promptly advise the Underwriter (1) when the Final Prospectus shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Offered Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (C4) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (5) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Offered Shares for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possible.possible the withdrawal thereof;
(ciii) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Rules and Regulationsrespective rules thereunder, the Company promptly will so shall (A) notify the Broker-Dealer andUnderwriter of such event, subject to Section 3(a(B) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (i) of this Section 6(a), an amendment or supplement to the Prospectus which will shall correct such statement or omission or an amendment which shall effect such compliance.compliance and (C) supply any supplemented Prospectus to you in such quantities as you may reasonably request;
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Underwriter (to the extent unavailable on open-access public filing retrieval systems) an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(v) Upon your request, the Company shall furnish to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof), so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Prospectus and any amendments thereof and supplements thereto as the Underwriter may reasonably request. The Company shall pay the expenses of printing or other production of all documents relating to the offering of the Offered Shares;
(vi) The Company will furnisharrange, without chargeif necessary, to for the Broker-Dealer or on qualification of the Offered Shares for sale under the laws of such Broker-Dealer's order, at such places jurisdictions as such Broker-Dealer the Underwriter may designate, copies will maintain such qualifications in effect so long as required for the distribution of each Preliminary Prospectusthe Offered Shares and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Shares, in any jurisdiction where it is not now so subject;
(vii) Without the prior written consent of the Underwriter, until the Lock-Up Period (as defined in Section 6(b) below) has expired, the Registration Statement Company and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(f) Neither the Company nor any of its individual trustees and executive officers shall not issue, sell or directors, nor its affiliates register with the Commission (within the meaning of the Rules and Regulationsother than on Form S-8 or on any successor form), will takeor otherwise dispose of, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation equity securities of the price of Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company.
(g) The ), except for the issuance of the Offered Shares pursuant to the Registration Statement, the grant of options and issuance of Common Shares pursuant to the Company's existing stock option plan or bonus plan, the issuance of Common Shares pursuant to options granted pursuant to the Company's existing stock option plan, and the issuance of Common Shares to holders of Partnership Units where the Company shall furnishis required to issue such Common Shares pursuant to conversion rights of such holders of Partnership Units existing prior to the date of this Agreement, in each case as described, or cause to be furnishedincorporated by reference, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus. In the event that prior to the expiration of the Lock- Up Period, (A) any Common Shares are issued pursuant to the Company's existing stock option plan or bonus plan that are exercisable prior to the expiration of the Lock-Up Period or (B) any registration is effected on Form S-8 or on any successor form relating to Common Shares that are issuable prior to the expiration of the Lock-Up Period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities who is a trustee or officer that, until the expiration of the Lock-Up Period, such person will not, without your prior written consent, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any Common Shares (or any securities convertible into, exercisable for or exchangeable for any Common Shares) owned by such person;
(viii) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the New York Stock Exchange (including as required by the Exchange Act); and
(ix) The Company and the Partnerships will apply the net proceeds from the offering of the Offered Shares in the manner set forth under "Use of Proceeds" in the Prospectus.
(b) For a period of 90 days after the date of the Prospectus and Supplement (the "Lock-Up Period"), the Company will not, directly or indirectly, (1) offer, pledge, sell, or contract to sell any Common Shares, (2) sell any option or contract to sell any Common Shares, (3) purchase any option or contract to sell any Common Shares, (4) grant any option, right or warrant to purchase any Common Shares, (5) enter into any swap or other agreement that transfers, in order whole or in part, the economic consequence of ownership of any Common Shares whether any such swap or transaction is to evidence the accuracy be settled by delivery of shares or completeness of other securities, in cash or otherwise, (6) take any of the conditions contained foregoing actions with respect to any securities convertible into or exchangeable or exercisable for or repayable with Common Shares, (7) file with the Commission a registration statement under the Act relating to any additional Common Shares or securities convertible into or exchangeable or exercisable for its Common Shares, or (8) publicly disclose the intention to take any of the foregoing actions, without the prior written consent of the Underwriter, except issuances of Common Shares (A) in this Agreement.connection with any acquisitions, joint ventures or similar arrangements, so long as the recipients of those shares agree not to sell or transfer those shares in a public market transaction during the Lock-Up Period;
Appears in 1 contract
Samples: Underwriting Agreement (Lexington Corporate Properties Trust)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer Underwriters as follows:
(a) The Company will use its best efforts not, either prior to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective Effective Date or thereafter during such period as promptly as practicable. If required, the Company will file the Prospectus and is required by law to be delivered in connection with sales of the Shares by an Underwriter or dealer, file any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Registration Statement or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplementedunless a copy thereof shall first have been submitted to the Representatives and made available to the Underwriters within a reasonable period of time prior to the filing thereof and the Underwriters shall not have objected thereto in good faith.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise notify the Broker-Dealer Representatives promptly, and will confirm such advice in writing, (A) when of the Registration Statementreceipt of any comments of, as amendedor requests for additional or supplemental information from, has become effective; if the provisions Commission, (B) of the filing of the Prospectus pursuant to Rule 430A promulgated 424 or Rule 434 under the Act will be relied uponSecurities Act, when (C) of the Prospectus has been filed in accordance with said Rule 430A time and when date that any post-effective amendment to the Registration Statement becomes effective; , (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (CD) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose or the threat thereof, (E) of the happening of any event during the Prospectus Delivery Period that in the judgment of the Company makes any statement made in the Registration Statement or the Prospectus untrue in any material respect or that requires the making of any changes in the Registration Statement or the Prospectus in order to make any such statements made therein, in light of the circumstances in which they are made, not misleading and (F) of receipt by the Company or any representatives or attorney of the Company of any other communication from the Commission relating to the Company, the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of thereto, any Preliminary Prospectus or the Prospectus. If at any time the Commission shall issue any order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. If the Company has omitted any information from the Registration Statement pursuant to Rule 430A of the Rules and Regulations, the Company will use its best efforts to comply with the provisions of and make all requisite filings with the Commission pursuant to Rules 424(b), 430A and 434, as applicable, and will notify the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge, copies of the executed signature pages of the Registration Statement and of any post-effective amendment thereto, including financial statements and schedules, and all exhibits thereto, and such number of conformed copies of the Registration Statement, with or without exhibits, and any supplement or amendment thereto, as the Representatives shall reasonably request.
(d) The Company will comply with all the provisions of any undertakings contained in the Registration Statement.
(e) Prior to the Effective Date, and thereafter during the Prospectus Delivery Period, the Company will deliver to the Representatives, without charge, as many copies of the Preliminary Prospectus and the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company Representatives may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdictionreasonably request. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Preliminary Prospectus (and the Prospectus, or any amendment or supplement thereto) , by the Broker-DealerUnderwriters and by all dealers to whom the Shares may be sold, both in connection with the initial offering or sale of the Notes Shares and for any period of time thereafter during the Prospectus Delivery Period. If during such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs shall occur, as a result of which the Preliminary Prospectus or the Prospectus, as then amended or supplemented, would include any an untrue statement of a material fact or omit to state a material fact necessary in order to make any statement therein, in the statements therein light of the circumstances under which it was made, not misleading, or if it becomes is necessary at any time to supplement or amend the Preliminary Prospectus or supplement the Prospectus to comply with the Act or the Rules and Regulationslaw, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will forthwith prepare and duly file with the SEC Commission an appropriate supplement or amendment thereto, and will deliver to the Representatives, without charge, such number of copies thereof as the Representatives may reasonably request.
(f) The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Shares for sale under (or obtain exemptions from the application of) state securities or blue sky laws and Canadian provincial securities laws of those jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g) During the period of five years commencing on the Effective Date, the Company will furnish to the Representatives and make available to the Underwriters, upon request, copies of such financial statements and other periodic and special reports as the Company may from time to time distribute generally to the holders of any class of its capital stock, and will furnish to the Representatives and make available to the Underwriters, upon request, a copy of each annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, an earnings statement (which need not be audited but shall be in reasonable detail) for a period of 12 months ended commencing after the Effective Date, and satisfying the provisions of Section 11(a) of the Securities Act.
(i) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including but not limited to costs and expenses of or relating to (A) the preparation, printing and filing of the Registration Statement and exhibits thereto, each Preliminary Prospectus, the Prospectus and any amendment or supplement to the Registration Statement or an amendment or supplement to the Prospectus, (B) the preparation and delivery of certificates representing the Shares, (C) the printing of this Agreement and any and all ancillary underwriting documents, (D) furnishing (including costs of shipping and distributing) such copies of the Registration Statement, the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Preliminary Prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold, (E) all fees and expenses associated with filing to list and listing Shares on the Nasdaq National Market, (F) the filing fees incident to the NASD's review and approval of the Underwriters participation in the offering and the distribution of the Shares, (G) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of each case as soon as available state and the provincial securities laws of Canada, (H) the fees and disbursements of counsel for the Underwriters in such quantities as connection with state Blue Sky and NASD filings (to a maximum of $12,500), (I) the Broker-Dealer may reasonably requestfees and expenses of the Company's counsel, accountants and other advisors, (J) the transfer agent for the Shares, (K) all necessary issue and transfer and other stamp taxes in connection with the issuance and sale of the Shares to the Underwriters, and (L) any and all travel, lodging and informational meeting expenses for Company personnel associated with the IPO and the selling process.
(fj) Neither If Cruttenden Xxxx is ready, willing and able to effectuate the offering of the Common Stock as described in the Prospectus, but the Company nor any elects not to reasonably proceed, the Company will reimburse Cruttenden Xxxx for up to $100,000 of its officers or directorsout-of pocket expenses, nor its affiliates (within the meaning including up to $75,000 of the Rules fees and Regulations), expenses of its counsel.
(k) The Company will takenot at any time, directly or indirectly, take any action designed todesigned, or which might in the future reasonably be expected expected, to cause or result in, or which will constitute, stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of the Shares to be sold by the Company in the manner set forth in the Prospectus under "Use of Proceeds."
(m) During the period of 180 days commencing at the Closing Date, the Company will not, without the Representatives' prior written consent, grant options or warrants to purchase shares of Common Stock at a price less than the fair market value price or issue any securities convertible into shares of Common Stock at a conversion price less than the fair market value price or grant any stock purchase rights at a price less than such price designated in the Company's stock purchase plan as in effect as of the date of this Agreement, other than as may occur under the terms of the Company's employee and director stock option and stock purchase plans as described in the Prospectus.
(gn) The Company shall furnishwill not, and will cause each of its existing record and beneficial holders of of Common Stock to enter into agreements with the Underwriters to the effect that they will not for a period of 180 days after the Effective Date, without the prior written consent of Cruttenden Xxxx Incorporated, sell, contract to sell or otherwise dispose of any shares of Common Stock or rights to acquire such shares (other than sales by the Company pursuant to employee and director stock option and stock purchase plans or other employee incentive compensation arrangements or in connection with the acquisition by the Company or its subsidiaries of technologies, product lines or businesses); provided that the recipients of shares in connection with a bona fide acquisition describe above agree in writing that they will not sell, contract to sell or otherwise dispose of any such shares of Common Stock for a period of 180 days after the Effective Date.
(o) The Company will use all reasonable efforts to comply with, or cause to be furnishedcomplied with, or make available, or cause to be made available, the conditions precedent to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any several obligations of the conditions contained Underwriters in this AgreementSECTION 5 hereof.
(p) The Company shall register the Common Stock under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and shall use its best efforts to maintain such registration for so long as such registration shall be required.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company has filed or will use its best efforts file each Statutory Prospectus (including the Final Prospectus) pursuant to cause and in accordance with Rule 424(b) not later than the Registration Statement, if not effective at second business day following the time earlier of the date it is first used or the execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will promptly advise the Broker-Dealer (A) when Representatives of any proposal to amend or supplement at any time the Registration Statement, as amended, has become effective; if the provisions ADS Registration Statement or any Statutory Prospectus at any time prior to the later of Rule 430A promulgated under (i) completion of the distribution of the Offered Securities within the meaning of the Act and (ii) completion of the Lock-Up Period (as defined below) and will not effect such amendment or supplement without the Representatives’ consent (which shall not be relied uponunreasonably withheld); and the Company will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, when (ii) any request by the Prospectus has been filed in accordance with said Rule 430A and when Commission or its staff for any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the supplement to any Statutory Prospectus or for any additional information; or , (Ciii) of the issuance institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use ADS Registration Statement or, to the Company’s best knowledge, threatening of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or, to the Company’s best knowledge, threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possiblepossible the withdrawal thereof.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct by any Underwriter or dealer, any event occurs or condition exists as a result of which the Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend the Registration Statement or the ADS Registration Statement or supplement the Final Prospectus to comply with the Act or the Rules and RegulationsAct, the Company will promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment Commission and furnish, at its own expense, to the Registration Statement or Underwriters and the dealers and any other dealers upon reasonable request of the Representatives, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ 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, unless stated specifically to constitute a waiver of such condition.
(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish, without chargeupon the Representatives’ reasonable request, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary the Registration Statement (including exhibits filed thereto and documents incorporated by reference therein), the ADS Registration Statement (without exhibits thereto but including documents incorporated by reference therein), any Statutory Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, Final Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as the Broker-Dealer may Representatives reasonably request.
(f) The Company will use its reasonable commercial efforts to arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate and will use its reasonable commercial efforts to continue such qualifications in effect so long as required for the distribution of the Offered Securities.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to, (i) all fees and expenses in connection with the preparation and filing of the Registration Statement (including financial statements and exhibits), the ADS Registration Statement, any preliminary prospectus, the General Disclosure Package, the Final Prospectus and any Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) the fees, disbursements and expenses of the Company’s counsels and accountants, (iii) all costs and expenses related to the transfer and delivery of the ADSs to the Underwriters, including any transfer or other taxes payable thereon, (iv) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Securities under state or foreign securities laws and all expenses in connection with the qualification of the Offered Securities for offer and sale under state or foreign securities laws as provided in Section 5(f) hereof, including filing fees, (v) all filing fees incurred in connection with the review and qualification of the offering of the Offered Securities by the Financial Industry Regulatory Authority, Inc. (“FINRA”), if applicable, (vii) all costs and expenses incident to listing the Offered Securities on the NYSE and any registration thereof under the Exchange Act, (vi) the costs and expenses of qualifying the Offered Securities for inclusion in the book-entry settlement system of The Depository Trust Company (“DTC”), (vii) the cost of printing ADRs corresponding to the Offered Securities, (viii) the costs and charges of any transfer agent, registrar or Depositary, (ix) the costs and expenses of the Company relating to investor presentations or any “road show” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, expenses associated with hosting investor meetings or luncheons, fees and expenses of any consultants engaged in connection with any road show or investor presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company, (x) the document production charges and expenses associated with the printing and delivery of this Agreement, any closing documents contemplated hereunder (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. Each of the Underwriters agrees to reimburse the Company certain costs and expenses pursuant to a side letter to be entered into with the Company on the date hereof, in an amount that is proportionate to the aggregate amount of Offered Securities set forth opposite the name of such Underwriter in Schedule A hereof.
(h) The Company will indemnify and hold harmless the Underwriters against any stamp, issuance, transfer or other similar taxes or duties, if any, on the issue, transfer, delivery or sale to the Underwriters and the initial transfer, delivery or sale by the Underwriters to purchasers of the Offered Securities. All payments to be made by the Company to the Underwriters under this Agreement shall be made without set-off or counterclaim, and free and clear of, and without deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature and all interest, penalties or similar liabilities with respect thereto, imposed by applicable jurisdictions or by any department, agency or other political subdivision or taxing authority thereof or therein (“Taxes”). If any Taxes are required by law to be deducted or withheld in connection with any such payment, the Company shall pay such additional amounts as may be necessary such that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made, except that no additional amounts shall be payable in respect of (a) any Taxes that would not have been imposed but for a present or former connection between such Underwriters and the applicable jurisdiction (or any department, agency or other political subdivision or taxing authority thereof or therein) other than a connection arising solely from such Underwriter having executed, delivered or performed its obligations, or received a payment, under this Agreement; (b) any Taxes that would not have been imposed but for the failure of such International Underwriter to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the taxing jurisdiction of the Underwriter if such compliance is required or imposed by law as a precondition to an exemption from, or reduction in, such Taxes; or (c) any income or franchise tax on the overall net income of such Underwriter.
(i) For the period specified below (the “Lock-Up Period”), the Company will not, directly or indirectly, take any of the following actions with respect to its Ordinary Shares or ADSs, or any securities convertible into or exchangeable or exercisable for any of its Ordinary Shares or ADSs (“Lock-Up Securities”): (i) offer, pledge, issue, sell, contract to sell or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (v) file with the Commission a registration statement under the Act relating to Lock-Up Securities, other than registration statements on Form S-8 relating to the issuance, vesting, exercise or settlement of equity awards granted or to be granted pursuant to any employee benefit plan described in the Final Prospectus, or publicly disclose the intention to take any such action, without the prior written consent of the Representatives, except (A) the Offered Securities to be sold hereunder, (B) the issuance of Ordinary Shares or ADSs or the grant of restricted shares, restricted ADSs or options to purchase Ordinary Shares or ADSs or similar securities under the Company’s employee share option scheme and equity plan, (C) the issuance of Ordinary Shares pursuant to the conversion of preference shares, convertible promissory notes or bonds or convertible notes outstanding on the date hereof of which the Representatives have been advised in writing or which is otherwise described in the Registration Statement, the General Disclosure Package and the Final Prospectus, and (D) the issuance of Ordinary Shares or ADSs in connection with any mergers or acquisitions approved by the Board. The Lock-Up Period will commence on the date hereof and continue for 90 days after the date hereof or such earlier date that the Representatives consent to in writing.
(j) The Company will use its commercially reasonable best efforts to list the Offered Securities on the NYSE.
(k) The Company will, on or prior to each Closing Date, deposit the Offered Shares with the Depository in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that Firm Securities or Optional Securities, as the case may be, will be issued by the Depositary against receipt of such Offered Shares and delivered to the Underwriters at each Closing Date.
(l) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is (or but for the exemption in Rule 172 would be) required to be delivered under the Act in connection with the offer or sale of the Offered Securities, will file all reports and other documents required to be filed by the Company with the Commission pursuant to the Exchange Act and the Rules and Regulations within the time periods required thereby.
(m) The Company agrees that (i) it will not attempt to avoid any judgment in connection with this Agreement applied or denied to it in a court of competent jurisdiction outside the Cayman Islands, and following the consummation of the offering of the Offered Securities, it will use its best efforts to obtain and maintain all approvals required, if any, in the Cayman Islands to pay and remit outside the Cayman Islands all dividends declared by the Company and payable on the Ordinary Shares, if any, and (ii) it will use its best efforts to obtain and maintain all approvals required, if any, in the Cayman Islands for the Company to acquire sufficient foreign exchange for the payment of dividends, if any.
(n) The Company intends to apply the net proceeds to the Company from the sale of the Offered Securities substantially in the manner set forth under the heading “Use of Proceeds” in the Registration Statement, the General Disclosure Package and the Final Prospectus and to file such reports with the Commission with respect to the sale of the Offered Securities and the application of the proceeds therefrom as may be required by Rule 463 under the Act. Neither the Company nor the Subsidiaries and Affiliated Entities intends to use any of its officers or directors, nor its affiliates (within the meaning proceeds from the sale of the Rules Offered Securities hereunder to repay any outstanding debt owed as of the date hereof to any affiliate of any Underwriter.
(o) The Company agrees not to, and Regulations)agrees to cause the Subsidiaries and Affiliated Entities not to, will take, directly or indirectly, any action designed to, to or which that might in the future reasonably be expected to cause or result in, in the stabilization or manipulation of the price of any securities security of the CompanyCompany to facilitate the sale or resale of the Offered Shares or the Offered Securities.
(gp) The Company shall furnishagrees not to, at any time at or after the execution of this Agreement, directly or indirectly, offer or sell any Offered Shares or Offered Securities by means of any “prospectus” (within the meaning of the Act), or cause use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Offered Shares or the Offered Securities, in each case other than the Final Prospectus.
(q) The Company agrees to promptly notify the Representatives if the Company ceases to be furnished, or make available, or cause to be made available, a Foreign Private Issuer at any time prior to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any completion of the conditions contained in this Agreementdistribution of Offered Securities within the meaning of the Act (as notified by the Underwriters to the Company) and 15 days after expiration of the Lock-Up Period.
Appears in 1 contract
Samples: Underwriting Agreement (Sea LTD)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts file the Prospectus with the Commission pursuant to cause the Registration Statementand in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not effective at to be unreasonably withheld or delayed) not later than the time of second business day following the execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and RegulationsAct, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment to the Registration Statement or Commission, at its own expense, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary Prospectus, the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, [[NYCORP:2534070v12:3639B:09/08/05--09:56 p]] any pre-effective related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or post-effective amendments thereto and dealer, the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably Representatives request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Neither The Company will arrange for the Company nor any of its officers or directors, nor its affiliates (within the meaning qualification of the Rules Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and Regulations), will take, directly or indirectly, any action designed to, or which might continue such qualifications in effect so long as required for the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companydistribution.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incidental to the Broker-Dealer during performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offering Period Offered Securities for sale under the laws of such additional documents and information regarding the Company and its affairs jurisdictions as the Broker-Dealer may from time to time reasonably requestRepresentatives designate and the printing of memoranda relating thereto, including any and all documentation reasonably requested regarding information for expenses incurred in the Registration Statement distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters; provided that on the First Closing Date, the Underwriters (acting collectively) will reimburse the Company for up to $100,000 of expenses incurred by the Company in order to evidence the accuracy or completeness performance of any of the conditions contained in its obligations under this Agreement.
(h) For a period of 90 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent Xxxxxx Brothers Inc. except (i) grants of employee and director stock options or restricted stock pursuant to the terms of a plan in effect on the date hereof, (ii) issuances of Common Stock pursuant to the exercise of options, preferred stock or warrants outstanding on the date of the initial offering of the Offered Securities and (iii) issuances of Common Stock in exchange for preferred stock of the Company outstanding on the date of the initial offering of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause agrees with the Registration Statementseveral Underwriters that:
(i) If, if not effective at the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Offered Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective; . Prior to the termination of the offering of the Shares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriters of such timely filing;
(Bii) The Company will promptly advise the Underwriters (1) when the Final Prospectus shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, Statement or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (C4) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (5) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Offered Shares for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possible.possible the withdrawal thereof;
(ciii) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Rules and Regulationsrespective rules thereunder, the Company promptly will so shall (A) notify the Broker-Dealer andUnderwriters of such event, subject to Section 3(a(B) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (i) of this Section 6(a), an amendment or supplement to the Prospectus which will shall correct such statement or omission or an amendment which shall effect such compliance.compliance and (C) supply any supplemented Prospectus to you in such quantities as you may reasonably request;
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters (to the extent unavailable on open-access public filing retrieval systems) an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(v) Upon your request, the Company shall furnish to the Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Prospectus, and any amendments thereof and supplements thereto, as the Underwriters may reasonably request. The Company shall pay the expenses of printing or other production of all documents relating to the offering of the Offered Shares;
(vi) The Company will furnisharrange, without chargeif necessary, to for the Broker-Dealer or on qualification of the Offered Shares for sale under the laws of such Broker-Dealer's order, at such places jurisdictions as such Broker-Dealer the Underwriters may designate, copies will maintain such qualifications in effect so long as required for the distribution of each Preliminary Prospectusthe Offered Shares and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated -------- to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Shares, in any jurisdiction where it is not now so subject;
(vii) Without the prior written consent of FUSI, until the Lock-Up Period (as defined in Section 6(b) below) has expired, the Registration Statement Company and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(f) Neither the Company nor any of its individual trustees and executive officers shall not issue, sell or directors, nor its affiliates register with the Commission (within the meaning of the Rules and Regulationsother than on Form S-8 or on any successor form), will takeor otherwise dispose of, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation equity securities of the price of Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company.
(g) The ), except for the issuance of the Offered Shares pursuant to the Registration Statement, the grant of options and issuance of Common Shares pursuant to the Company's existing Omnibus Share Plan and the 1995 Non-Qualified Stock Option Plan, the disposition of Common Shares pursuant to the exercise of options granted pursuant to the Company's Omnibus Share Plan and the 1995 Non-Qualified Stock Option Plan, and the issuance of Common Shares to holders of Partnership Units where the Company shall furnishmay issue such Partnership Units pursuant to conversion rights of such holders of Partnership Units existing prior to the date of this Agreement, in each case as described, or cause to be furnishedincorporated by reference, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus. In the event that prior to the expiration of the Lock-Up Period, (A) any Common Shares are issued pursuant to the Company's existing stock option plan or bonus plan that are exercisable prior to the expiration of the Lock-Up Period or (B) any registration is effected on Form S-8 or on any successor form relating to Common Shares that are exercisable prior to the expiration of the Lock-Up Period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities who is a trustee or officer that, until the expiration of the Lock-Up Period, such person will not, without your prior written consent, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any Common Shares (or any securities convertible into, exercisable for or exchangeable for any Common Shares) owned by such person;
(viii) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the New York Stock Exchange (including any required registration under the Exchange Act); and
(ix) The Company and the Partnership will apply the net proceeds from the offering of the Offered Shares in the manner set forth under "Use of Proceeds" in the Prospectus.
(b) For a period of 90 days after the date of the Prospectus and Supplement (the "Lock-Up Period"), the Company will not, directly or indirectly, (1) offer, pledge, sell, or contract to sell any Common Shares, (2) sell any option or contract to sell any Common Shares, (3) purchase any option or contract to sell any Common Shares, (4) grant any option, right or warrant to purchase any Common Shares, (5) enter into any swap or other agreement that transfers, in order whole or in part, the economic consequence of ownership of any Common Shares whether any such swap or transaction is to evidence the accuracy be settled by delivery of shares or completeness of other securities, in cash or otherwise, (6) take any of the conditions contained foregoing actions with respect to any securities convertible into or exchangeable or exercisable for or repayable with Common Shares, (7) file with the Commission a registration statement under the Act relating to any additional Common Shares or securities convertible into or exchangeable or exercisable for its Common Shares, or (8) publicly disclose the intention to take any of the foregoing actions, without the prior written consent of FUSI, except issuances of Common Shares (A) in this Agreement.connection with any acquisitions, joint ventures or similar arrangements, so long as the recipients of those shares agree not to sell or transfer those shares in a public market transaction during the Lock-Up Period;
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act Regulations not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act Regulations; during the period beginning on the date hereof and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement or Prospectus (B) including any amendment or supplement through incorporation of any request made report filed under the Exchange Act) which shall be disapproved by the SEC for amending Representative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement, for supplementing Statement has been filed or becomes effective or any Preliminary Prospectus or supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representative with copies thereof; to file promptly, and in any event within the time periods specified, all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for additional informationso long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required in connection with the offering or sale of the Securities; or (C) to advise the Representative, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment other prospectus in respect of the Securities, of the suspension of the qualification of the Securities for offering or supplement thereto sale in any jurisdiction, of the initiation or the institution or threat threatening of any investigation or proceeding for that any such purpose, and will use its best efforts to prevent 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 the Prospectus or other prospectus or suspending any such order andqualification, if issued, promptly to use its reasonable best efforts to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus in such quantities as the Representative may reasonably request, and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act Regulations) is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) 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 request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders via EXXXX within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and any pre-effective or post-effective amendments thereto its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the ProspectusSecurities Act Regulations (including, and all amendments and supplements theretoat the option of the Company, in each case as soon as available and in such quantities as Rule 158 under the Broker-Dealer may reasonably requestSecurities Act).
(f) Neither During the Company nor any of its officers or directors, nor its affiliates (within period beginning from the meaning date hereof and continuing to and including the date 90 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of McDonald Investments Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day restricted period, the restrictions imposed in this Section 4(f) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, except that such extension will not apply if, within three business days prior to the 15th calendar day before the last day of the 90-day restricted period, (A) the Company delivers a certificate, signed by the Chief Financial Officer or Chief Executive Officer of the Company, certifying on behalf of the Company that (1) the shares of Common Stock are “actively traded securities” (as defined in Regulation M), (2) the Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act Regulations in the manner contemplated by NASD Conduct Rule 2711(f)(4) and (3) the provisions of NASD Conduct Rule 2711(f)(4) are not applicable to any research reports relating to the Company published or distributed by any of the Underwriters during the 15 days before or after the last day of the 90-day restricted period (before giving effect to such extension) and (B) McDonald Investments Inc. concurs, in its reasonable judgment, with such certifications. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement referred to in the Prospectus.
(g) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via EXXXX to the Representative promptly after they become available, copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the NASD or any national securities exchange on which the Common Stock is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Time of Sale Prospectus under the caption “Use of Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the Nasdaq all documents and notices required in connection therewith.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The Company To cause each person listed on Schedule F hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule E hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule F hereto shall be entitled to transfer and assign shares of Common Stock (i) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an “Entity”), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (ii) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person’s spouse or members of such person’s immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule E hereto prior to time reasonably request, including any and such transfer.
(m) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(n) If the Company elects to rely upon Rule 462(b) under the Securities Act Regulations, 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 Prospectus and in order Company shall at the time of filing either pay to evidence the accuracy Commission the filing fee for the Rule 462(b) Registration Statement or completeness give irrevocable instructions for the payment of any of such fee pursuant to Rule 111(b) under the conditions contained in this AgreementSecurities Act Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Superior Well Services, INC)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and To furnish all such information as may be reasonably required and otherwise to cooperate in order to qualify, where practicable, qualifying the Notes Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Company Representative may agree, (B) continue designate and to maintain such qualifications in effect for as long as may be necessary to complete requested by the Representative for the distribution of the NotesSecurities, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, provided that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standardsjurisdiction (except service of process with respect to the offering and sale of the Securities).
(db) The Company consents If, after the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the use Registration Statement to be declared effective before the offering of the Securities may commence, to endeavor to cause such post-effective amendment to become effective as soon as possible and to advise the Representative promptly and, if requested by the Representative, to confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus (including the information previously omitted from the Registration Statement pursuant to Rule 430B under the Securities Act) 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; during the period beginning on the date of this Agreement and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement (including any Rule 462(b) Registration Statement), any preliminary prospectus, the Time of Sale Prospectus or the Prospectus (and including any amendment or supplement theretothrough incorporation of any report filed under the Exchange Act) that shall be disapproved by the Broker-DealerRepresentative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time and date when any amendment to the Registration Statement (including any Rule 462(b) Registration Statement) has been filed or becomes effective or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been filed and to furnish the Representative with copies thereof; to file promptly and, in any event, within the time periods specified, all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Notes and Securities; to advise the Representative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any amendment thereto, any Rule 462(b) Registration Statement or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus, of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such period purpose, of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information, or of any proceedings to remove, suspend or terminate from listing the Securities from AMEX, or of the threatening or initiation of any proceedings for any of such purposes; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time thereafter as when the Prospectus is required by law not yet available to be delivered in connection therewith. If, at prospective purchasers and any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Time of Sale Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Time of Sale Prospectus is delivered, not misleadingmisleading or, or if for any other reason it becomes shall be necessary at any time to amend or supplement the Time of Sale Prospectus in order to comply with the Securities Act or the Rules rules and Regulationsregulations thereunder, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Time of Sale Prospectus or an amendment or a supplement to the Time of Sale Prospectus which that will correct such statement or omission or effect such compliance.
(e) The Company will furnishNo later than 12:00 p.m. (Eastern time) on the second business day succeeding the date of this Agreement, without chargeand from time to time, to furnish the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Underwriters with written and electronic copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and Prospectus in such quantities as the Broker-Dealer Representative may reasonably requestrequest and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any 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 (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) 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 Securities Act, to notify the Representative and upon its request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representative may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities 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 the request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(f) Neither To make generally available to its securityholders via XXXXX within the required time periods after the effective date of the Registration Statement (as the term “effective date” is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company nor any and its consolidated subsidiaries (which need not be audited) complying with the provisions of its officers or directors, nor its affiliates (within the meaning Section 11(a) of the Rules Securities Act and Regulationsthe rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act).
(g) During the period beginning from the date of this Agreement and continuing to and including the date 90 days after the date of the Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of KeyBanc Capital Markets Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this Section 3(g) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement described in the Time of Sale Prospectus or the Prospectus.
(h) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via XXXXX to the Representative promptly after they become available copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. (“FINRA”) or any national securities exchange on which the Common Stock is listed.
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified under the caption “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus.
(j) To use its best efforts to list, subject to official notice of issuance, the Securities on AMEX prior to the First Delivery Date and to maintain such listing and to file with AMEX all documents and notices required in connection therewith.
(k) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(l) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gm) The Company To cause each person listed on Schedule C hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule B hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule C hereto shall be entitled to transfer and assign shares of Common Stock (1) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an “Entity”), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (2) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person’s spouse or members of such person’s immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule B hereto prior to time reasonably request, including any and such transfer.
(n) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(o) If the Company elects to rely upon Rule 462(b) under the Securities Act, to file a Rule 462(b) Registration Statement and with the Prospectus and Commission in order to evidence compliance with Rule 462(b) by 10:00 p.m. (Eastern time) on the accuracy or completeness date of any of the conditions contained in this Agreement, and at the time of filing to pay to the Commission the filing fee for the Rule 462(b) Registration Statement pursuant to Rule 111(a) under the Securities Act.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsUnderwriter:
(a) The Company will use its best efforts (i) to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required and otherwise to cooperate in order to qualify, where practicable, qualifying the Notes Offered Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions states as the Company Underwriter may agree, (B) continue designate and to maintain such qualifications in effect for as so long as may be necessary to complete required for the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)Offered Securities; PROVIDED, HOWEVER, provided that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of the process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Offered Securities); and (ii) to promptly advise the Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such jurisdiction. The Broker-Dealer acknowledges purpose;
(b) to make available to the Underwriter, as soon as practicable after the execution and agrees that delivery of this Underwriting Agreement, and thereafter from time to time to furnish to the Underwriter, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriter may impose special minimum suitability standards on Purchasers reasonably request for the purposes contemplated by the Act; in some jurisdictions case the Underwriter is required to deliver a prospectus after the nine-month period referred to in order Section 10(a)(3) of the Act in connection with the sale of the Offered Securities, the Company will prepare promptly upon request such amendment or amendments to obtain qualifications therein the Registration Statement and that Brokersuch prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter), (i) when any post-Dealer must comply therewith in soliciting subscriptions from Purchasers. The effective amendment to the Registration Statement becomes effective and (ii) when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to promptly notify the Broker-Dealer of any file in a timely manner under such special standards.Rule);
(d) The Company consents to advise the Underwriter promptly, confirming such advice in writing (if requested by the Underwriter), of any request by the Commission for amendments or supplements to the use Registration Statement or the Prospectus or for additional information with respect thereto, or notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every commercially reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and, for so long as the delivery of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, is required in connection with the offering offer or sale of the Notes and Offered Securities, to file no such amendment or supplement to which the Underwriter shall object in writing;
(e) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) of the Act;
(i) to the extent not publicly filed, to furnish to the Underwriter for such a period of time thereafter two (2) years from the date of this Underwriting Agreement copies of any reports or other communications which the Company shall send to its stockholders and (ii) such other information publicly disclosed by the Company as the Underwriter may reasonably request regarding the Company, in each case as soon as reasonably practicable after such reports, communications, documents or information become available, or are requested by the Underwriter;
(g) to advise the Underwriter promptly of the happening of any event known to the Company within the time during which a Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct which would require the making of any change in the Prospectus then being used, any event occurs as a result of which so that the Prospectus, as then amended or supplemented, Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein therein, in the light of the circumstances under which they are made, not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer misleading and, subject during such time, to Section 3(a) hereof, will prepare and file with furnish, at the SEC an amendment Company's expense, to the Registration Statement Underwriter promptly such amendments or an supplements to such Prospectus as may be necessary to reflect any such change and to furnish the Underwriter a copy of such proposed amendments or supplements before filing any such amendment or supplement to with the Prospectus which will correct such statement or omission or effect such compliance.Commission;
(eh) The Company will furnish, without charge, to furnish the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Underwriter five (5) conformed copies of each Preliminary Prospectus, the Initial Registration Statement and any pre-effective or post-effective of all amendments thereto (including all exhibits thereto);
(i) to apply the net proceeds from the sale of the Offered Securities in the manner set forth under the caption "Use of Proceeds" in the Prospectus;
(j) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each preliminary prospectus, if applicable, the Prospectus, and all any amendments and or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriter (including costs of mailing and shipment), (ii) the registration, issuance, sale and delivery of the Offered Securities, (iii) the printing of this Underwriting Agreement, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriter (including costs of mailing and shipment), (iv) the qualification of the Offered Securities for offering and sale under state and foreign laws and the determination of their eligibility for investment under state and foreign laws as aforesaid (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriter) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriter, (v) any listing of the Offered Securities on any securities exchange or qualification of the Offered Securities for quotation on the Nasdaq National Market and any registration thereof under the Exchange Act, (vi) review of the public offering of the Offered Securities by the NASD (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriter), (vii) the costs and expenses of the Company relating to presentations or meeting undertaken in each case connection with the marketing of the offer and sale of the Offered Securities to prospective investors and the Underwriter's sales force, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show and (viii) the performance of the other obligations of the Company hereunder; provided, however, that except as soon as available otherwise set forth in this Underwriting Agreement, the Underwriter shall pay its own costs and in such quantities expenses, including the costs and expenses of counsel for the Underwriter;
(k) for so long as the Broker-Dealer may delivery of the Prospectus is required in connection with the offer or sale of the Offered Securities, to furnish to the Underwriter a reasonable period of time before filing with the Commission a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and to not make any filing to which the Underwriter reasonably request.objects;
(fl) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will to not take, directly or indirectly, any action designed to, to or which may constitute or which might in the future reasonably be expected to cause or result inresult, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any securities security of the Company.Company to facilitate the sale or resale of the Offered Securities;
(gm) The Company not to, during the Lock-Up Period, without the prior written consent of Pacific Growth Equities, LLC, effect the Disposition of, directly or indirectly, any Securities other than the sale of the Offered Securities hereunder; provided that nothing in this Underwriting Agreement shall furnishprevent the Company's issuance of equity securities under the Company's currently authorized equity incentive plans, including its employee stock purchase plan, or cause upon exercise of outstanding equity awards;
(n) to file timely all reports and any definitive proxy or information statement required to be furnished, or make available, or cause filed by the Company with the Commission in order to be made available, comply with the Exchange Act and the Rules and Regulations subsequent to the Broker-Dealer during date of the Offering Period such additional documents Prospectus and information regarding the Company and its affairs for so long as the Brokerdelivery of a prospectus is required in connection with the offering or sale of the Offered Securities, and to promptly notify the Underwriter of such filing;
(o) if, at the time this Underwriting Agreement is executed and delivered, it is necessary for a post-Dealer may from time effective amendment to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and or an additional registration statement to be declared effective before the Prospectus and in order to evidence the accuracy or completeness of any offering of the conditions contained Offered Securities may commence, the Company will endeavor to cause such post-effective amendment or additional registration statement to become effective as soon as possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in this Agreementwriting, when such post-effective amendment or additional registration statement has become effective; and
(p) to use all commercially reasonable efforts to maintain the quotation of the Offered Securities on the Nasdaq National Market and to file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have securities traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
Appears in 1 contract
Samples: Underwriting Agreement (La Jolla Pharmaceutical Co)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDEDprovided, HOWEVERhowever, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(f) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Company.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.
Appears in 1 contract
Samples: Broker Dealer Selling Agreement (Tamarack Funding Corp)
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts To furnish such information as may be required and otherwise to cause cooperate in qualifying the Registration StatementSecurities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Representative may designate and to maintain such qualifications in effect as long as requested by the Representative for the distribution of the Securities, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, provided that the Company will file shall not be required to qualify as a foreign corporation or to consent to the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) service of process under the Act. During laws of any time when a prospectus relating such state (except service of process with respect to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act offering and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and sale of the Prospectus, as then amended or supplementedSecurities).
(b) As soon as If, after the Company time this Agreement is advised or obtains knowledge thereofexecuted and delivered, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any it is necessary for a post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative 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; during the period beginning on the date hereof and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement or Prospectus (B) including any amendment or supplement through incorporation of any request made report filed under the Exchange Act) which shall be disapproved by the SEC for amending Representative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement, for supplementing Statement has been filed or becomes effective or any Preliminary Prospectus or supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representative with copies thereof; to file promptly, and in any event within the time periods specified, all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for additional informationso long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required in connection with the offering or sale of the Securities; or (C) to advise the Representative, promptly after it receives notice thereof, of the issuance by the SEC Commission of any stop order suspending the effectiveness or of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment other prospectus in respect of the Securities, of the suspension of the qualification of the Securities for offering or supplement thereto sale in any jurisdiction, of the initiation or the institution or threat threatening of any investigation or proceeding for that any such purpose, and will use its best efforts to prevent 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 the Prospectus or other prospectus or suspending any such order andqualification, if issued, promptly to use its reasonable best efforts to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws withdrawal of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardsorder.
(d) The Company consents No later than 12:00 p.m., New York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the use Underwriters with written and electronic copies of the Prospectus in such quantities as the Representative may reasonably request, and, if the delivery of a prospectus (and or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any amendment or supplement thereto) by time prior to the Broker-Dealer, expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes Securities and for if at such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act) is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time during such period to amend or supplement the Prospectus in order to comply with the Act or the Rules and RegulationsSecurities Act, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Prospectus or an amendment or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities 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 the request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(e) The Company will furnish, without charge, To make generally available to its securityholders via XXXXX within the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies required time periods after the effective date of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities (as the Broker-Dealer may reasonably requestterm “effective date” is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its consolidated subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 under the Securities Act).
(f) Neither During the Company nor any of its officers or directors, nor its affiliates (within period beginning from the meaning date hereof and continuing to and including the date 90 days after the date of the Rules and Regulations)Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of the Representative, provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day restricted period, the restrictions imposed in this Section 3(f) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, except that such extension will not apply if, within three business days prior to the 15th calendar day before the last day of the 90-day restricted period, (A) the Company delivers a certificate, signed by the Chief Financial Officer or Chief Executive Officer of the Company, certifying on behalf of the Company that (1) the shares of Common Stock are “actively traded securities” (as defined in Regulation M), (2) the Company meets the applicable requirements of paragraph (a)(1) of Rule 139 under the Securities Act in the manner contemplated by FINRA Conduct Rule 2711(f)(4) and (3) the provisions of FINRA Conduct Rule 2711(f)(4) are not applicable to any research reports relating to the Company published or distributed by any of the Underwriters during the 15 days before or after the last day of the 90-day restricted period (before giving effect to such extension) and (B) the Representative concurs, in its reasonable judgment, with such certifications. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement referred to in the Prospectus. Notwithstanding the foregoing, each of Xxxxx X. Xxxxxxxxxx and Rhys X. Xxxxx may establish a Rule 10b5-1 trading plan after the Company delivers the Firm Securities that shall provide for no more than one sale per month of up to 15,000 shares, which sales may commence during the 90-day period covered by the foregoing agreements and may continue for up to eighteen months.
(g) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via XXXXX to the Representative promptly after they become available, copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, FINRA or any national securities exchange on which the Common Stock is listed.
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Time of Sale Prospectus under the caption “Use of Proceeds.”
(i) To use its best efforts to list, subject to official notice of issuance, the Securities on the Nasdaq prior to the First Delivery Date and to maintain such listing and to file with the Nasdaq all documents and notices required in connection therewith.
(j) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(k) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gl) The Company To cause each person listed on Schedule E hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule D hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule E hereto shall be entitled to transfer and assign shares of Common Stock (i) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an “Entity”), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (ii) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person’s spouse or members of such person’s immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule D hereto prior to time reasonably request, including any and such transfer.
(m) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(n) If the Company elects to rely upon Rule 462(b) under the Securities Act, 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 Prospectus and in order Company shall at the time of filing either pay to evidence the accuracy Commission the filing fee for the Rule 462(b) Registration Statement or completeness give irrevocable instructions for the payment of any of such fee pursuant to Rule 111(b) under the conditions contained in this AgreementSecurities Act.
Appears in 1 contract
Samples: Underwriting Agreement (Superior Well Services, INC)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts Prior to cause the Registration Statement, if not effective at termination of the time offering of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If requiredthe Offered Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Prospectus Supplement or any Preliminary Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Prospectus Supplement, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the SEC in Commission pursuant to the manner and applicable paragraph of Rule 424(b) within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating prescribed and will provide evidence satisfactory to the Notes is required to be delivered under the Act, the Representatives of such timely filing. The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will promptly advise the Broker-Dealer Representatives (Ai) when the Registration StatementProspectus Supplement and any supplement thereto, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has shall have been filed in accordance (if required) with said the Commission pursuant to Rule 430A and when 424(b), (ii) when, prior to termination of the offering of the Offered Securities, any post-effective amendment to the Registration Statement becomes shall have been filed or become effective; , (Biii) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus Supplement or for any additional information; or , (Civ) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto notice objecting to its use or the institution or threat threatening of any investigation or proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, if issuedupon such issuance, occurrence or notice of objection, to obtain the lifting thereof as soon as possiblepossible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) At any time when the Prospectus is required to be delivered under the Act, the Exchange Act and the Rules and Regulations in connection with sales of the Offered Securities, the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the Act, the Exchange Act or otherwise, and will furnish to the Representatives, without charge, 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 documents to which the Representatives or counsel for the Underwriters shall reasonably object.
(c) The Company agrees to pay the required Commission filing fees relating to the Offered Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(d) The Company will furnish to the Representatives copies of the Registration Statement (Atwo of which will be signed and will include all exhibits thereto and documents incorporated by reference), and, will furnish to the Underwriters in New York City, without charge, prior to 10:00
M. Eastern Daylight Time on the second business day next following the execution and delivery of this Agreement and during the period mentioned in Section 7(e) take below, as many copies of the General Disclosure Package and Prospectus and any supplements and amendments thereto or cause to be taken all such actions and furnish all such the Registration Statement as the Representatives may reasonably request.
(e) If at any time following the date hereof there occurs an event or development as a result of which an Issuer Free Writing Prospectus conflicts or would conflict with the information as may be reasonably required contained in the Registration Statement, the General Disclosure Package, or the Prospectus or includes or would include an untrue statement of a material fact or omits or would omit to state a material fact necessary in order to qualify, where practicablemake the statements therein not misleading, the Notes Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement, or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with information relating to any Underwriter furnished to the Company by any Underwriter through the Representatives specifically for offer use therein, it being understood and agreed that the only such information is that described as such in Section 9(b) hereof.
(f) If, during such period after the first date of the public offering of the Offered Securities, the Prospectus or the General Disclosure Package is required by law to be delivered in connection with sales by any Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package or the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading when the General Disclosure Package or Prospectus is delivered to a purchaser, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus and the General Disclosure Package to comply with applicable law the Company will promptly notify The Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and to any other dealers (whose names and addresses the Representatives will furnish to the Company) to which the Offered Securities may have either been sold by or on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus and the General Disclosure Package which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to or delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 8.
(g) The Company will arrange for the qualification of the Offered Securities for sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Representatives designate and will continue such qualifications in effect for as so long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)distribution; PROVIDED, HOWEVERprovided, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers jurisdiction or to subject itself to taxation in some jurisdictions respect of doing business in order to obtain qualifications therein and that Broker-Dealer must comply therewith any jurisdiction in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standardswhich it is not otherwise so subject.
(dh) The Company consents will make generally available to its securityholders no later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the Act) covering the twelve month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in said Rule 158) of the Registration Statement which will satisfy the provisions of Section 11(a) of 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 use performance of the Prospectus Company’s obligations under this Agreement, including: (i) the fees, disbursements and any amendment or supplement thereto) by expenses of the Broker-Dealer, Company’s counsel and the Company’s accountants in connection with the offering registration and delivery of the Offered Securities under the Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Prospectus, the General Disclosure Package and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Representatives and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Offered Securities to the Representatives, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky memorandum in connection with the offer and sale of the Notes Offered Securities under state securities laws and for such period of time thereafter as the Prospectus is required by law to be delivered all expenses in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or qualification of the Rules Offered Securities for offer and Regulations, the Company promptly will so notify the Broker-Dealer and, subject to sale under state securities laws as provided in Section 3(a7(g) hereof, will prepare including filing fees and file the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the SEC an amendment Blue Sky or memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Registration Statement Underwriters (up to $5,000 in the aggregate) incurred in connection with the review and qualification of the offering of the Offered Securities by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Underlying Securities on the NYSE, (vi) the cost of printing certificates representing the Offered Securities, (vii) the costs and charges of any transfer agent, registrar or an amendment depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the production of road show slides and graphics, reasonable travel and lodging expenses of the Representatives and officers of the Company and any other expenses of the Company in connection with attending or supplement hosting meetings with prospective purchasers of the Offered Securities (including fifty percent (50%) of the cost of any private aviation), (ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the Prospectus performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section and Section 9 entitled “Indemnification and Contribution,” the Underwriters will correct such statement or omission or effect such compliancepay all of their costs and expenses, including fees and disbursements of its counsel, stock transfer taxes payable on resale of any of the Offered Securities by it and any advertising expenses connected with any offers they may make.
(ej) The Company will furnishcomply with all applicable securities and other applicable laws, rules and regulation, including, without chargelimitation, the Xxxxxxxx-Xxxxx Act, and use its commercially reasonable efforts to cause the Company’s directors and officers, in their capacities as such, to the Broker-Dealer or on comply with such Broker-Dealer's orderlaws, at such places as such Broker-Dealer may designaterules and regulations, copies of each Preliminary Prospectusincluding, without limitation, the Registration Statement and any preprovisions of the Xxxxxxxx-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestXxxxx Act.
(fk) The Company will use its reasonable best efforts to meet the requirements to qualify, for its taxable year ending December 31, 2008, for taxation as a REIT under the Code.
(l) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds.”
(m) The Company will cooperate with the Underwriters and use its best efforts to permit the Offered Securities to be eligible for clearance and settlement through the facilities of DTC.
(n) For a period of 90 days after the date of this Agreement, the Company will not, without the prior written consent of the Representatives on behalf of the Underwriters, (i) offer, pledge, announce the intention to sell, 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, or file with the Commission a registration statement under the Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to make any such offer, sale pledge, disposition or filing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, other than (1) the Offered Securities to be sold hereunder, (2) grants of stock options, shares of restricted stock and other awards pursuant to the terms of any Company employee benefit plan described in the Prospectus and the General Disclosure Package, (3) issuances of Common Stock pursuant to the exercise of options or restricted stock units, (4) issuances of Common Stock pursuant to the Company’s dividend reinvestment and stock purchase plan in effect on the date of this Agreement and described in the Prospectus and the General Disclosure Package, (5) issuances of Common Stock to members of CSE SNF Holding LLC who exercise rights to cause the Company to redeem their interests as described in the Prospectus and the General Disclosure Package, (6) resale registration statements or prospectus supplements thereto relating to the Company’s convertible debentures outstanding on the date of this Agreement, (7) the repurchase of the Company’s 1.25% and 1.625% convertible debentures due 2034, or (8) any amendments, modifications or adjustments to the call option and warrant confirmations filed as Exhibits 10.3, 10.4 and 10.5 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007 made in connection with any repurchase made in accordance with clause (7) above. Notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(o) Neither the Company nor any of its officers or directors, nor its affiliates (within will take any action prohibited under Regulation M under the meaning Exchange Act in connection with the distribution of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might in the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the CompanyOffered Securities contemplated hereby.
(gp) The Company shall furnish, or cause will use its best efforts to be furnished, or make available, or cause to be made available, to have the Broker-Dealer during Offered Securities listed on the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this AgreementNYSE.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause file each Statutory Prospectus (including the Registration Statement, if not effective at the time of execution of this Agreement, Prospectus) pursuant to and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto in accordance with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to Securities Act not later than the Notes second business day following the date it is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.first used;
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (Ai) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offer and sale under the securities or blue sky Laws of such states as the Underwriters may designate and to maintain such qualifications in effect so long as required for the purposes set forth in clauses (A) and (B)distribution of the Shares; PROVIDED, HOWEVERprovided, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer Laws of any such special standards.
jurisdiction (d) The Company consents except service of process with respect to the use of the Prospectus (offer and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes Shares); and (ii) to promptly advise the Underwriters of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threat of any proceeding for such period purpose;
(c) to make available to the Underwriters copies of time thereafter each Registration Statement, each related preliminary prospectus, and, so long as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Shares is required to be delivered under the Securities Act in connection with sales by the Underwriters or any dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Underwriters reasonably request. The Prospectus shall be so furnished on or prior to 10:00 a.m., Central Daylight Time, on the second business day following the date of this Underwriting Agreement. All other documents shall be so furnished as soon as available;
(d) to advise the Underwriters promptly of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus and not effect any such amendment or supplementation without the consent of the Underwriters; and the Company will also advise the Underwriters promptly of the filing of any such amendment or supplement, or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable best effort to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and, for so long as the delivery of the Prospectus is (or, but for the exemption in Rule 172 under the Securities Act, would be) required in connection with the offer or sale of the Shares, to file no such amendment or supplement to which the Underwriters shall object in writing;
(e) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) of the Securities Act;
(f) (i) to the extent not publicly filed, to furnish to the Underwriters for a period of one year from the date of this Underwriting Agreement copies of any reports or other communications which the Company shall send to its stockholders and (ii) such other information publicly disclosed by the Company as the Underwriters may reasonably request in writing regarding the Company, in each case as soon as reasonably practicable after such reports, communications, documents or information become available, or are requested in writing by the Underwriters;
(g) to advise the Underwriters promptly of the happening of any event occurs as known to the Company within the time during which a result of which Prospectus relating to the ProspectusShares is (or, as then amended or supplementedbut for the exemption in Rule 172 under the Securities Act, would be) required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein made therein, in the light of the circumstances under which they are made, not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, the Company promptly will so notify the Broker-Dealer misleading and, subject during such time, to Section 3(a) hereof, will prepare and file with furnish, at the SEC an amendment Company’s expense, to the Registration Statement Underwriters promptly such amendments or an supplements to such Prospectus as may be necessary to reflect any such change and to furnish the Underwriters a copy of such proposed amendments or supplements before filing any such amendment or supplement with the Commission;
(h) to furnish the Underwriters five conformed copies of the initial registration statement and of all amendments thereto (including all exhibits thereto);
(i) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Prospectus;
(j) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each preliminary prospectus, each Statutory Prospectus, the Prospectus which will correct such statement and any amendments or omission or effect such compliance.
(e) The Company will furnishsupplements thereto, without charge, to and the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, printing and furnishing of copies of each Preliminary Prospectusthereof to the Underwriters (including costs of mailing and shipment); (ii) the registration, issuance, sale and delivery of the Shares; (iii) the reproduction and/or furnishing of copies of this Underwriting Agreement, any powers of attorney and any closing documents (including compilations thereof) to the Underwriters (including costs of mailing and shipment); (iv) the qualification of the Shares for offering and sale under state Laws and the determination of their eligibility for investment under state Laws as aforesaid (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys to the Underwriters; (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the NASDAQ Capital Market and any registration thereof under the Exchange Act; (vi) the review, if any, of the public offering of the Shares by FINRA (including associated filing fees and the reasonable legal fees and disbursements of counsel for the Underwriters); (vii) the presentations or meetings undertaken in connection with the marketing of the offer and sale of the Shares to prospective investors and the Underwriters’ sales force, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, and travel, lodging and other expenses incurred by the officers of the Company and any such consultants; and (viii) the performance of the other obligations of the Company hereunder; provided, however, that except as otherwise set forth in this Underwriting Agreement, the Registration Statement Underwriters shall pay their own costs and any pre-effective or post-effective amendments thereto expenses, including the costs and expenses of counsel for the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities Underwriters;
(k) for so long as the Broker-Dealer may delivery of the Prospectus is (or, but for the exemption in Rule 172 under the Securities Act, would be) required in connection with the offer or sale of the Shares, to furnish to the Underwriters a reasonable period of time before filing with the Commission a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and to not make any filing to which the Underwriters reasonably request.object;
(fl) Neither the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will not to take, directly or indirectly, any action designed to, to or which may constitute or which might in the future reasonably be expected to cause or result inresult, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(m) for a period commencing on the date of this Underwriting Agreement and ending on the close of business on the 90th day after the date of this Underwriting Agreement, without the prior written consent of Wedbush, not to offer, sell, pledge, contract to sell, grant any option or rights to purchase, grant a security interest in, hypothecate or otherwise sell or dispose of, directly or indirectly, any equity securities of the Company or any securities convertible into, derivative of or exchangeable or exercisable for shares of Common Stock or other equity security of the Company other than the sale of the Shares hereunder; provided that nothing in this Underwriting Agreement shall prevent the Company’s issuance of equity securities under the Company’s currently authorized equity incentive plans disclosed in the General Disclosure Package or upon exercise of outstanding equity awards. Notwithstanding the foregoing, if (i) the Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days of such 90-day period, or (ii) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restriction imposed hereby shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided, however, that this sentence shall not apply if any research published or distributed by the Underwriters on the Company would be compliant under Rule 139 of the Securities Act and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act.
(gn) The Company shall furnish, to file timely all reports and any definitive proxy or cause information statement required to be furnished, or make available, or cause filed by the Company with the Commission in order to be made available, comply with the Exchange Act and the Rules and Regulations subsequent to the Broker-Dealer during date of the Offering Period such additional documents Prospectus and information regarding the Company and its affairs for so long as the Brokerdelivery of a prospectus is (or, but for the exemption in Rule 172 under the Securities Act, would be) required in connection with the offering or sale of the Shares, and to promptly notify the Underwriters of such filing;
(o) if, at the time this Underwriting Agreement is executed and delivered, it is necessary for a post-Dealer may from time effective amendment to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and or an additional registration statement to be declared effective before the Prospectus and in order to evidence the accuracy or completeness of any offering of the conditions contained Shares may commence, the Company will endeavor to cause such post-effective amendment or additional registration statement to become effective as soon as possible and will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in this Agreementwriting, when such post-effective amendment or additional registration statement has become effective; and
(p) to use all reasonable best efforts to maintain the quotation of the Shares on the NASDAQ Capital Market and to file with the NASDAQ Capital Market all documents and notices required by the NASDAQ Capital Market of companies that have securities traded in the over-the-counter market and quotations for which are reported by the NASDAQ Capital Market.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followseach Agent:
(a) The Company will use its best efforts (i) if, at any time during the period when a prospectus is required by the Act to cause be delivered in connection with the distribution of the Securities, the Registration StatementStatement shall cease to comply with the requirements of the Act with respect to eligibility for the use of Form F-3, if not effective at on which the time of execution of this AgreementRegistration Statement was filed with the Commission, and any amendments thereto, the Registration Statement shall cease to become effective be an “automatic shelf registration statement” (as promptly as practicable. If requireddefined in Rule 405 under the Act) or the Company shall have received a notice from the Commission pursuant to Rule 401(g)(2), the Company will (A) promptly notify the Agent, (B) promptly file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) Commission a new registration statement under the Act. During any time when a prospectus Act relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of Securities or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any a post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus which new registration statement or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending shall comply with the use requirements of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or Act and shall be in a form satisfactory to the institution or threat of any investigation or proceeding for that purposeAgent, and will (C) use its best efforts to prevent cause such new registration statement or post-effective amendment to become effective under the issuance of any such order and, if issued, to obtain the lifting thereof Act as soon as possible.
practicable, (cD) The Company will promptly notify the Agent of such effectiveness and (AE) take all other action necessary or cause appropriate to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete permit the distribution of the NotesSecurities to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement or post-effective amendment, if any;
(Cii) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be will file the Program Prospectus, the Preliminary Prospectus and the Prospectus, each as amended and supplemented in a form approved by the Agent, with the Commission within the time periods specified by the Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act and will file promptly all reports and other information required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that be filed by the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order with the Commission pursuant to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify Section 13(a), 13(c), 14 or 15(d) of the Broker-Dealer of any such special standards.
(d) The Company consents Exchange Act subsequent to the use date of the Prospectus and for so long as the delivery of a prospectus (and any amendment or supplement theretoor, in lieu thereof, the notice referred to in Rule 173(a) by under the Broker-Dealer, Act) is required in connection with the offering or sale of the Notes Securities;
(iii) to make no amendment or supplement to the Registration Statement, the Basic Prospectus, the Program Prospectus, the Time of Sale Information or the Prospectus (A) prior to the Commencement Date which shall be disapproved by any Agent promptly after reasonable notice thereof, (B) except as required by law, after the date of any Terms Agreement or other agreement by an Agent to purchase Securities as principal and prior to the related Time of Delivery if such amendment or supplement is reasonably objected to by any Agent party to such Terms Agreement or so purchasing as principal promptly after reasonable notice thereof or (C) during the period beginning on the Commencement Date and continuing for as long as may be required under applicable law, in the reasonable judgment of Nomura Securities International, Inc. after consultation with the Company, in order to offer and sell any Securities in Secondary Market Transactions as contemplated by the Prospectus (the “Secondary Transactions Period”), which shall be disapproved by Nomura Securities International, Inc. promptly after reasonable notice thereof;
(iv) that before preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, the Company will furnish to the Agent and counsel for the Agent a copy of the proposed Issuer Free Writing Prospectus for review and will not prepare, use, authorize, approve, refer to or file any such period of time thereafter Issuer Free Writing Prospectus to which the Agent reasonably objects;
(v) to prepare, with respect to any Securities to be sold through or to such Agent pursuant to this Agreement, a Pricing Supplement with respect to such Securities in a form previously approved by such Agent and to file such Pricing Supplement (or components thereof, as the Prospectus case may be) with the Commission within such time as may be required by the Act;
(vi) to file promptly with the Commission all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act, for so long as the delivery of a prospectus is required by law to be delivered in connection therewith. Ifwith the offering or sale of the Securities (including, at in the case of Nomura Securities International, Inc., in any Secondary Market Transactions during the Secondary Transactions Period), and during such same period to advise the Agent (with confirmation in writing), promptly after it receives notice thereof, of (A) the time when a any amendment to the Registration Statement, the Preliminary Prospectus or the Prospectus has been filed or becomes effective or any supplement to the Preliminary Prospectus, the Prospectus or any amendment thereof, or of any Issuer Free Writing Prospectus, has been filed with the Commission, of (B) the issuance by the Commission of any stop order or of any order preventing or suspending the effectiveness or the use of any prospectus relating to the Notes is required Securities or the initiation or threatening of any proceeding for that purpose or pursuant to be delivered under Section 8A of the Act, of (C) the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of (E) the initiation or threatening of any proceeding for any such purpose, of (E) any request by the Commission for the amending or supplementing of the Registration Statement, the Preliminary Prospectus or the Prospectus or for additional information relating to the Securities, the Registration Statement, the Preliminary Prospectus or the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information, or (F) of the occurrence of any event occurs within six months after the time of issue of the Prospectus as amended or supplemented in connection with the offering or sale of the Securities (including Securities purchased from the Company by the Agent as principal and including, in the case of Nomura Securities International, Inc., in any Secondary Market Transactions during the Secondary Transactions Period) as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, ; and
(vii) 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 (or if it becomes necessary at any such action is known to be pending), promptly to use its best efforts to obtain its withdrawal (or prevent its issuance);
(b) from time to amend or supplement time to take such action as such Agent may reasonably request to qualify the Prospectus Securities for offering and sale under the securities laws of such states of the United States as such Agent may reasonably request and to comply with such laws so as to permit the Act or continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the Rules and Regulationsdistribution of the Securities (including, in the case of Nomura Securities International, Inc., in any Secondary Market Transactions during the Secondary Transactions Period), provided that in connection therewith the Company promptly will so notify the Broker-Dealer and, shall not be required to file a prospectus or equivalent document or to qualify as a foreign corporation or to subject itself to Section 3(ataxation as doing business or to file a general consent to service of process in any jurisdiction;
(i) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to during the Prospectus which will correct such statement or omission or effect such compliance.
Delivery Period (e) The Company will furnish, without chargeas defined below), to the Broker-Dealer or on furnish such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Agent with copies of the Prospectus as amended or supplemented (other than any Pricing Supplement (except as provided in the Administrative Procedures)) and of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and Issuer Free Writing Prospectus in such quantities as the Broker-Dealer such Agent may reasonably request.
(f) Neither ; as used herein, the Company nor any term “Prospectus Delivery Period” means such period of its officers or directors, nor its affiliates (within time after the meaning first date of the Rules and Regulations), will take, directly or indirectly, any action designed to, or which might public offering of the Securities as in the future reasonably opinion of counsel for the Agent a prospectus relating to the Securities is required by law to be expected delivered (or required to cause or result in, stabilization or manipulation be delivered but for Rule 172 under the Act) in connection with sales of the price of Securities by any securities of the Company.
(g) The Company shall furnish, Agent or cause to be furnished, or make available, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreement.dealer;
Appears in 1 contract
Samples: Distribution Agreement (Nomura America Finance, LLC)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as follows:
(a) The Company will use its best efforts to cause agrees with the Registration StatementUnderwriter that:
(i) If, if not effective at the time of execution of this AgreementAgreement is executed and delivered, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when it is necessary for a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes to be declared effective before the offering of the Offered Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when such post-effective amendment has become effective; . Prior to the termination of the offering of the Offered Shares, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing;
(Bii) The Company will promptly advise the Underwriter (1) when the Final Prospectus shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Offered Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request made by the SEC Commission or its staff for amending any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for supplementing any Preliminary Prospectus or supplement to the Prospectus or for any additional information; or , (C4) of the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto the institution or any order preventing or suspending the use threatening of any Preliminary Prospectus or proceeding for that purpose and (5) of the Prospectus or receipt by the Company of any amendment or supplement thereto notification with respect to the suspension of the qualification of the Offered Shares for sale in any jurisdiction or the institution or threat threatening of any investigation or proceeding for that such purpose, and . The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain the lifting thereof as soon as possible.possible the withdrawal thereof;
(ciii) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes shall be necessary at any time to amend or supplement the Prospectus to comply with the Act, the Exchange Act or the Rules and Regulationsrespective rules thereunder, the Company promptly will so shall (A) notify the Broker-Dealer andUnderwriter of such event, subject to Section 3(a(B) hereof, will prepare and file with the SEC an amendment Commission, subject to the Registration Statement or second sentence of paragraph (i) of this Section 6(a), an amendment or supplement to the Prospectus which will shall correct such statement or omission or an amendment which shall effect such compliance.compliance and (C) supply any supplemented Prospectus to you in such quantities as you may reasonably request;
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Underwriter (to the extent unavailable on open-access public filing retrieval systems) an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(v) Upon your request, the Company shall furnish to the Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof), so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Prospectus and any amendments thereof and supplements thereto as the Underwriter may reasonably request. The Company shall pay the expenses of printing or other production of all documents relating to the offering of the Offered Shares;
(vi) The Company will furnisharrange, without chargeif necessary, to for the Broker-Dealer or on qualification of the Offered Shares for sale under the laws of such Broker-Dealer's order, at such places jurisdictions as such Broker-Dealer the Underwriter may designate, copies will maintain such qualifications in effect so long as required for the distribution of each Preliminary Prospectusthe Offered Shares and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Offered Shares, in any jurisdiction where it is not now so subject;
(vii) On or before completion of this offering, the Registration Statement Company shall make all filings required under applicable securities laws and any pre-effective or post-effective amendments thereto by the New York Stock Exchange (including as required by the Exchange Act); and
(viii) The Company and the Partnerships will apply the net proceeds from the offering of the Offered Shares in the manner set forth under "Use of Proceeds" in the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably request.
(fb) Neither For a period of 90 days after the date of the Prospectus Supplement (the "Lock-Up Period"), the Company nor any of its officers or directors, nor its affiliates (within the meaning of the Rules and Regulations), will takenot, directly or indirectly, any action designed to(1) offer, pledge, sell, or which might contract to sell any Common Shares, (2) sell any option or contract to sell any Common Shares, (3) purchase any option or contract to sell any Common Shares, (4) grant any option, right or warrant to purchase any Common Shares, (5) enter into any swap or other agreement that transfers, in whole or in part, the future reasonably be expected to cause or result in, stabilization or manipulation economic consequence of the price ownership of any securities of the Company.
(g) The Company shall furnish, Common Shares whether any such swap or cause transaction is to be furnishedsettled by delivery of shares or other securities, in cash or make availableotherwise, or cause to be made available, to the Broker-Dealer during the Offering Period such additional documents and information regarding the Company and its affairs as the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of (6) take any of the conditions contained in this Agreement.foregoing actions with respect to any securities convertible into or exchangeable or exercisable for or repayable with Common Shares, (7) file with the Commission a registration statement under the Act relating to any additional Common Shares or
Appears in 1 contract
Samples: Underwriting Agreement (Lexington Corporate Properties Trust)
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsseveral Underwriters that:
(a) The Company will use its best efforts file the Prospectus with the Commission pursuant to cause the Registration Statementand in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not effective at to be unreasonably withheld or delayed) not later than the time of second business day following the execution and delivery of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the The Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions Representatives promptly of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment proposal to amend or supplement the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or for additional informationsupplement; or (C) and the Company will also advise the Representatives promptly of the issuance filing of any such amendment or supplement and of the institution by the SEC Commission of any stop order suspending the effectiveness proceedings in respect of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, part thereof and will use its best efforts to prevent the issuance of any such stop order andand to obtain as soon as possible its lifting, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, or if it becomes is necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and RegulationsAct, the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, Representatives of such event and will promptly prepare and file with the SEC an amendment to the Registration Statement or Commission, at its own expense, an amendment or supplement to the Prospectus which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish, without charge, furnish to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Representatives copies of each Preliminary Prospectus, the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any pre-effective related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or post-effective amendments thereto and dealer, the Prospectus, Prospectus and all amendments and supplements theretoto such documents, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably Representatives request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Neither The Company will arrange for the Company nor any of its officers or directors, nor its affiliates (within the meaning qualification of the Rules Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and Regulations), will take, directly or indirectly, any action designed to, or which might continue such qualifications in effect so long as required for the future reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companydistribution.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incident to the Broker-Dealer during performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offering Period Offered Securities for sale under the laws of such additional documents and information regarding the Company and its affairs jurisdictions as the Broker-Dealer may from time to time reasonably requestRepresentatives designate and the printing of memoranda relating thereto, including any and all documentation reasonably requested regarding information for expenses incurred in the Registration Statement distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters.
(h) For a period of 90 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Banc of America Securities LLC except grants of employee stock options pursuant to the terms of a plan in order effect on the date hereof and issuances of Common Stock pursuant to evidence the accuracy exercise of options, preferred stock or completeness of any warrants outstanding on the date of the conditions contained in this Agreementinitial offering of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsAgents that it will furnish to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents, one signed copy of the Registration Statement, including all exhibits and all documents incorporated by reference, in the form it became effective and of all amendments thereto and that, in connection with each offering of Notes, it will take the following actions:
(a) The From the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold (i) the Company will advise each Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus by means of a post-effective amendment, sticker, or supplement (except post-effective amendments, supplements, and stickers relating solely to interest rates or maturities of Notes) but not by means of incorporation of document(s) by reference into the Registration Statement or the Prospectus; (ii) the Company will afford the Agents a reasonable opportunity to comment on any such proposed post-effective amendment, sticker, or supplement; (iii) the Company will advise each Agent of the filing of any such post-effective amendment, sticker, or supplement; and (iv) the Company will (x) advise each Agent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof, (y) use its best efforts to cause prevent the issuance of any such stop order, and (z) if a stop order is issued, to obtain its lifting as soon as possible.
(b) If from the time solicitation regarding sale of the Notes is begun until all of the Notes have been sold, the Company shall determine that it is necessary to suspend solicitation of the Notes because of the occurrence of an event that results in the Prospectus either (x) including an untrue statement of a material fact or omitting to state any material fact necessary to make the statements in such Prospectus, in light of the circumstances under which they were made when such Prospectus was delivered, not misleading, or (y) failing to comply with the Act, then the Company will promptly notify each Agent to suspend solicitation of purchases of the Notes. Notwithstanding Section 4(a) if the Company shall determine to amend or supplement the Registration StatementStatement or Prospectus to correct such result, it will advise each Agent promptly and afford the Agents a reasonable opportunity to discuss and comment upon the nature of the disclosure in such amendment or supplement. Notwithstanding the foregoing, if not effective at the time of execution any notification to suspend solicitations (i) this Agreement shall be in effect and any Agent shall own any of the Notes with the intention of reselling them, or (ii) the Company has accepted an offer to purchase Notes but the related settlement has not occurred, then the Company, subject to the provisions of Section 4(a) of this Agreement, will promptly prepare and any amendments thereto, to become effective as promptly as practicable. If required, file with the Company will file the Prospectus and any Commission an amendment or supplement thereto with which will correct such statement or omission or effect such compliance.
(c) The Company, during the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, will furnish to each Agent promptly after timely filing with the Commission all documents required to be filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (except those filings associated with employee benefit plans). The Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance immediately notify each Agent of sales of or dealings any downgrading in the Notes in accordance with the provisions hereof and rating of the ProspectusNotes or any other debt securities of the Company, or any proposal to downgrade the rating of the Notes or any other debt securities of the Company, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), as then amended or supplemented.
(b) As soon as the Company is advised learns of such downgrading or obtains knowledge thereof, the proposal to downgrade.
(d) The Company will advise the Broker-Dealer (A) when furnish to each Agent copies of the Registration Statement, as amendedincluding all exhibits except those incorporated by reference, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied uponany related preliminary prospectus, when any related preliminary prospectus supplement, the Prospectus has been filed and all amendments and supplements to such documents, in accordance with said Rule 430A each case as soon as available and when any post-effective amendment to the Registration Statement becomes effective; in such quantities as are reasonably requested.
(Be) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and The Company will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, qualification of the Notes for offer sale and sale the determination of their eligibility for investment under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) Agents designate and will continue such qualifications in effect for as so long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B)distribution; PROVIDEDprovided, HOWEVERhowever, that the Company shall not be required to qualify as a foreign corporation or to file a general or unlimited any consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standards.
(d) The Company consents to the use of the Prospectus (and any amendment jurisdiction or supplement thereto) by the Broker-Dealer, in connection with the offering or sale of the Notes and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, or if it becomes necessary at any time to amend or supplement the Prospectus to comply with the Act or the Rules and Regulations, any other requirements deemed by the Company promptly will so notify the Broker-Dealer and, subject to Section 3(a) hereof, will prepare and file with the SEC an amendment to the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission or effect such compliance.
(e) The Company will furnish, without charge, to the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Broker-Dealer may reasonably requestbe unduly burdensome.
(f) Neither So long as any Notes are outstanding, the Company nor any will furnish to the Agents: (i) as soon as practicable after the end of each fiscal year, a copy of its officers annual report to shareholders for such year, (ii) as soon as available, a copy of each report or directors, nor its affiliates (within the meaning definitive proxy statement of the Rules Company filed with the Commission under the Exchange Act or mailed to shareholders, and Regulations)(iii) from time to time, will take, directly or indirectly, any action designed to, or which might in such other information concerning the future Company as you may reasonably be expected to cause or result in, stabilization or manipulation of the price of any securities of the Companyrequest.
(g) The Company shall furnish, or cause to be furnished, or make available, or cause to be made available, will pay all expenses incident to the Brokerperformance of its obligations under this Agreement, and will reimburse each Agent for any expenses (including Blue Sky fees and disbursements of counsel which will not in the aggregate exceed $6,000) incurred by it in connection with qualification of the Notes for sale and determination of their eligibility for investment under the laws of such jurisdictions as such Agent may designate and the printing of memoranda relating thereto, for any filing fees charged by investment rating agencies for the rating of the Notes, for any filing fee of the National Association of Securities Dealers, Inc. relating to the Notes, and for the reasonable fees and disbursements of counsel to the Agents.
(h) Not later than 45 days after the end of the 12-Dealer during month period beginning at the Offering Period such additional documents and information regarding end of any fiscal quarter of the Company and in which the Closing Date or any other Representation Date occurs, the Company will make generally available to its affairs as security holders an earnings statement (which need not be audited) covering such 12-month period which will satisfy the Broker-Dealer may from time to time reasonably request, including any and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness provisions of any Section 11(a) of the conditions contained in this AgreementAct.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with the Broker-Dealer as followsUnderwriter that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company It will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by pursuant to Rule 424(b) under the Act. During Securities Act not later than the Commission's close of business on the date of this Agreement; to make no further amendment or any time when a prospectus relating supplement to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amendedor the Prospectus prior to the Closing Date that 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 become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when been filed or becomes effective or any amendment or supplement to the Prospectus has been filed in accordance and to furnish you with said Rule 430A and when any post-effective amendment copies thereof; to the Registration Statement becomes effective; (B) of any request made file promptly all material required to be filed by the SEC for amending Company with the Registration StatementCommission pursuant to Rule 433(d) under the Securities Act; 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), for supplementing any Preliminary Prospectus 13(c), 14 or the Prospectus or for additional information; or (C15(d) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and furnish all such information as may be reasonably required in order to qualify, where practicable, the Notes for offer and sale under the state securities or blue sky laws of such jurisdictions as the Company may agree, (B) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Notes, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer of any such special standards.
(d) The Company consents Exchange Act subsequent to the use date of the Prospectus and for so long as the delivery of a prospectus (and any amendment or supplement theretoin lieu thereof, the notice referred to in Rule 173(a) by under the Broker-Dealer, Act) is required in connection with the offering or sale of the Notes and Offered Securities; 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 the Prospectus, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such period purpose, or of time thereafter as 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 the Prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Offered Securities by the Underwriter (references herein to the Registration Statement shall include any such amendment or new registration statement).
(b) On the date of this Agreement and from time to time, to furnish the Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a 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 therewith. If, at any time when a prospectus relating prior to the Notes is required to be delivered under expiration of nine months after the Act, time of issue of the Prospectus in connection with the offering or sale of the Offered Securities and if at such time any event occurs shall have occurred as a result of which the Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein 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 Securities Act) is delivered, not misleading, or or, if for any other reason it becomes shall be necessary at any time 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 Securities Act, the Exchange Act or the Rules Trust Indenture Act, to notify you and Regulations, the Company promptly will so notify the Broker-Dealer and, subject upon your request to Section 3(a) hereof, will file such document and to prepare and file with the SEC an amendment furnish without charge to the Registration Statement 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 an amendment or a supplement to the Prospectus which that will correct such statement or omission or effect such compliance; and in case the Underwriter is required under the Securities Act to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) in connection with sales of any of the Offered Securities at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of the Underwriter, to prepare and deliver to the 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 Securities Act.
(c) To make generally available to its securityholders as soon as practicable, but in any event not later than 16 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations thereunder (including, at the option of the Company, Rule 158).
(d) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Underwriter designates and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Underwriter, provided that the Company will not be required to qualify as a foreign corporation, to file a general consent to service of process in any such jurisdiction or to take any other action that would subject the Company to service of process in any suits (other than those arising out of the offering of the Offered Securities) or to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(e) The Company will furnish, without charge, pay all expenses incident to the Broker-Dealer or on performance of its obligations under this Agreement and the Mortgage, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale and determination of their eligibility for investment under the laws of such Broker-Dealer's orderjurisdictions as the Underwriter designates and the printing of memoranda relating thereto, at such places as such Broker-Dealer may designatefor the fees and expenses of the Trustee and its professional advisors, copies for all expenses in connection with the execution, issue, authentication, packaging and initial delivery of each Preliminary Prospectusthe Offered Securities, the Registration Statement preparation and any pre-effective or post-effective amendments thereto and printing of this Agreement, the Offered Securities, the Prospectus, and all amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities, for the cost of any advertising approved by the Company in each case connection with the issue of the Offered Securities, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company's officers and employees, and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus (including any amendments and supplements thereto) to the Underwriter. Except as soon as available otherwise provided in this Section 5(e) or in Section 9 of this Agreement, the Underwriter will pay all of its costs and in such quantities as expenses, including fees and expenses of its counsel, transfer taxes on the Broker-Dealer may reasonably requestresale of the Offered Securities and any advertising and travel expenses incurred by them.
(f) Neither In connection with the offering, until the earlier of (i) 180 days following the Closing Date and (ii) the date the Underwriter shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its officers affiliates has or directorswill, nor either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(within g) From the meaning date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Rules and Regulations)Underwriter, will takeoffer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any action designed or file with the Commission a registration statement under the Securities Act relating to, any United States dollar-denominated debt securities issued or which might in guaranteed by the future reasonably be expected to cause or result in, stabilization or manipulation Company and having a maturity of more than one year from the price date of any securities of the Companyissue.
(gh) The Company shall furnish(i) represents and agrees that without the prior consent of the Underwriter, or cause to be furnished, or it has not made and will not make available, or cause to be made available, any offer relating to the Broker-Dealer during Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Offering Period such additional documents Act and information regarding (ii) has complied and will comply with the Company and its affairs requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus (as defined in Rule 433 under the Broker-Dealer may from time to time reasonably requestSecurities Act), including any timely filing with the Commission or retention where required and all documentation reasonably requested regarding information in the Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of any of the conditions contained in this Agreementlegending.
Appears in 1 contract
Certain Agreements of the Company. The Company hereby covenants and agrees with each of the Broker-Dealer as followsUnderwriters:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as practicable. If required, the Company will file the Prospectus and any amendment or supplement thereto with the SEC in the manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Notes is required to be delivered under the Act, the Company will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Notes in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented.
(b) As soon as the Company is advised or obtains knowledge thereof, the Company will advise the Broker-Dealer (A) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; (B) of any request made by the SEC for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information; or (C) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such order and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Company will (A) take or cause to be taken all such actions and To furnish all such information as may be reasonably required and otherwise to cooperate in order to qualify, where practicable, qualifying the Notes Securities for offer offering and sale under the state securities or blue sky laws of such jurisdictions (both domestic and foreign) as the Company Representative may agree, (B) continue designate and to maintain such qualifications in effect for as long as may be necessary to complete requested by the Representative for the distribution of the NotesSecurities, (C) cause its counsel to provide a blue sky memorandum and regular supplements thereto ("Blue Sky Memorandum"), and (D) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (A) and (B); PROVIDED, HOWEVER, provided that the Company shall not be required to qualify as a foreign corporation or file a general or unlimited to consent to the service of process in any such jurisdiction. The Broker-Dealer acknowledges and agrees that under the Company may impose special minimum suitability standards on Purchasers in some jurisdictions in order to obtain qualifications therein and that Broker-Dealer must comply therewith in soliciting subscriptions from Purchasers. The Company agrees to promptly notify the Broker-Dealer laws of any such special standardsstate (except service of process with respect to the offering and sale of the Securities).
(db) The Company consents If, after the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the use Registration Statement to be declared effective before the offering of the Securities may commence, to endeavor to cause such post-effective amendment to become effective as soon as possible and to advise the Representative promptly and, if requested by the Representative, to confirm such advice in writing, when such post-effective amendment has become effective.
(c) To prepare the Prospectus in a form approved by the Representative and to file such Prospectus (including the information previously omitted from the Registration Statement pursuant to Rule 430B under the Securities Act) 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; during the period beginning on the date of this Agreement and ending on the date, which in the opinion of counsel for the Underwriters, a prospectus is no longer required by law to be delivered in connection with the offering and sales of the Securities, to make no further amendment or any supplement to the Registration Statement (including any Rule 462(b) Registration Statement), any preliminary prospectus, the Time of Sale Prospectus or the Prospectus (and including any amendment or supplement theretothrough incorporation of any report filed under the Exchange Act) that shall be disapproved by the Broker-DealerRepresentative promptly after reasonable notice thereof; to advise the Representative, promptly after it receives notice thereof, of the time and date when any amendment to the Registration Statement (including any Rule 462(b) Registration Statement) has been filed or becomes effective or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus has been filed and to furnish the Representative with copies thereof; to file promptly and, in any event, within the time periods specified all reports and any definitive proxy or information statements required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Regulations) is required in connection with the offering or sale of the Notes and Securities; to advise the Representative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any amendment thereto, any Rule 462(b) Registration Statement or any amendment or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus, of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such period purpose, of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information, or of any proceedings to remove, suspend or terminate from listing the Securities from AMEX, or of the threatening or initiation of any proceedings for any of such purposes; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time thereafter as when the Prospectus is required by law not yet available to be delivered in connection therewith. If, at prospective purchasers and any time when a prospectus relating to the Notes is required to be delivered under the Act, any event occurs events shall have occurred as a result of which the Prospectus, Time of Sale Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made when such Time of Sale Prospectus is delivered, not misleadingmisleading or, or if for any other reason it becomes shall be necessary at any time to amend or supplement the Time of Sale Prospectus in order to comply with the Securities Act or the Rules rules and Regulationsregulations thereunder, the Company promptly will so to notify the Broker-Dealer and, subject Representative and upon its request to Section 3(a) hereof, will prepare and file with furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the SEC Representative may from time to time reasonably request of an amendment to the Registration Statement amended Time of Sale Prospectus or an amendment or a supplement to the Time of Sale Prospectus which that will correct such statement or omission or effect such compliance.
(e) The Company will furnishNo later than 12:00 p.m., without chargeNew York City time, on the second business day succeeding the date of this Agreement, and from time to time, to furnish the Broker-Dealer or on such Broker-Dealer's order, at such places as such Broker-Dealer may designate, Underwriters with written and electronic copies of each Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and Prospectus in such quantities as the Broker-Dealer Representative may reasonably requestrequest and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any 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 (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) 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 Securities Act, to notify the Representative and upon its request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representative may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus that will correct such statement or omission or effect such compliance, and in case any Underwriter is required by law, rule or regulation to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities 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 the request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(f) Neither To make generally available to its securityholders via XXXXX within the required time periods after the effective date of the Registration Statement (as the term "effective date" is defined in Rule 158(c) under the Securities Act), an earnings statement of the Company nor any of and its officers or directors, nor its affiliates consolidated subsidiaries (within which need not be audited) complying with the meaning provisions of
(a) of the Rules Securities Act and Regulationsthe rules and regulations thereunder (including, at the option of the Company, Rule 158 under the Securities Act).
(g) During the period beginning from the date of this Agreement and continuing to and including the date 90 days after the date of the Prospectus, will takeexcept as provided hereunder, not to, directly or indirectly, offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition of) any shares of Common Stock or any securities that are substantially similar to the Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to the Common Stock, or sell or grant options, rights or warrants with respect to any shares of Common Stock or any securities that are substantially similar to Common Stock or securities convertible into or exchangeable for Common Stock or any securities that are substantially similar to Common Stock, or publicly announce the intention to do any of the foregoing (other than pursuant to employee option plans existing on the date of this Agreement), without the prior written consent of KeyBanc Capital Markets Inc., provided, however, that, notwithstanding the foregoing, if (i) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs or (ii) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this Section 3(g) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The foregoing sentence shall not prohibit the issuance of any shares of Common Stock issued or options to purchase Common Stock or other Common Stock-based awards, in each case granted pursuant to any equity compensation plan or agreement described in the Time of Sale Prospectus or the Prospectus.
(h) During a period of two years from the effective date of the Registration Statement, to deliver or to make available via XXXXX to the Representative promptly after they become available copies of any reports and financial statements furnished by the Company to its stockholders or filed with the Commission, the Financial Industry Regulatory Authority, Inc. ("FINRA") or any national securities exchange on which the Common Stock is listed.
(i) To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified under the caption "Use of Proceeds" in the Time of Sale Prospectus and the Prospectus.
(j) To use its best efforts to list, subject to official notice of issuance, the Securities on AMEX prior to the First Delivery Date and to maintain such listing and to file with AMEX all documents and notices required in connection therewith.
(k) To engage and maintain, at its expense, a registrar and transfer agent for the Securities.
(l) Not to, and to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed toto stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Securities or (iii) pay or agree to pay any person any compensation for soliciting any order to purchase any other securities of the Company.
(gm) The Company To cause each person listed on Schedule C hereto to furnish to the Representative, prior to the First Delivery Date, a letter or letters, substantially in the form of Schedule B hereto, pursuant to which each such person shall furnishagree not to, except as provided by this Agreement, directly or indirectly (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or cause could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be furnishedsettled by delivery of Common Stock or other securities, in cash or make availableotherwise, in each case for a period of 90 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters. Notwithstanding the foregoing, each person listed on Schedule C hereto shall be entitled to transfer and assign shares of Common Stock (1) in the case of any such person that is a corporation, partnership, limited liability company or cause to be made availableother entity (an "Entity"), to any other Entity that controls, is controlled by or is under common control with such Entity or to any equity holder of such Entity and (2) in the Broker-Dealer during case of any such person that is an individual, to a trust or limited partnership for the Offering Period benefit of such additional documents and information regarding person's spouse or members of such person's immediate family; provided that, in each case, such transferee or assignee of shares of Common Stock shall furnish to the Company and its affairs as Representative a letter substantially in the Broker-Dealer may from time form of Schedule B hereto prior to time reasonably request, including any and such transfer.
(n) To comply with all documentation reasonably requested regarding information of the provisions of any undertakings in the Registration Statement.
(o) If the Company elects to rely upon Rule 462(b) under the Securities Act Regulations, to file a Rule 462(b) Registration Statement and with the Prospectus and Commission in order to evidence compliance with Rule 462(b) by 10:00 p.m., Eastern time, on the accuracy or completeness date of any of the conditions contained in this Agreement, and at the time of filing to 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 Regulations.
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