Certain Covenants of the Company. The Company hereby agrees: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and 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 offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (b) to make available to the Underwriters in New York City, as soon as practicable after the date of this Agreement, and thereafter from time to time to furnish to the Underwriters, 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 date of this Agreement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act; (c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus; (d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing; (e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing; (f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change; (g) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board); (h) to furnish to the Underwriters one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto; (i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i); (j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs; (k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent; (l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus; (m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act; (o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and (p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 2 contracts
Samples: Underwriting Agreement (DHT Holdings, Inc.), Underwriting Agreement (DHT Holdings, Inc.)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except a limited consent to service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as reasonably practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Pre-Pricing Prospectus and the Prospectus (or of the Pre-Pricing Prospectus and the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) deliver, in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement Statement, the Pre-Pricing Prospectus and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Pre-Pricing Prospectus and the Prospectus is filed with the Commission pursuant to Rule 424(b497(h) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rule), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwritersrequested, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Pre-Pricing Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary the Pre-Pricing Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) to be delivered in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to, and in accordance with, Rule 462(b) under the Act and pay the applicable fees in accordance with the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Pre-Pricing Prospectus or the Prospectus then being used so that the Pre-Pricing Prospectus or the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Pre-Pricing Prospectus or Prospectus as may be necessary to reflect any such change;
(gh) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve (12) months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than , ;
(i) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report you four (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h4) to furnish to the Underwriters one copy copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two (2) business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof;
(k) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption “Use of proceeds” in the Pre-Pricing Prospectus and the Prospectus;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Pre-Pricing Prospectus and the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of the Pre-Pricing Prospectus and Prospectus to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, 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 Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the Nasdaq, (vi) any filing for review of the public offering of the Shares by the NASD, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, and (viii) the performance of the Company’s other obligations hereunder; it is understood, however, that, except as provided in this Section, and Sections 5 and 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make;
(m) beginning on the date hereof and ending on, and including, the date that is (__) days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives[INSERT NAME OF LEAD UNDERWRITER], not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii)otherwise, except, in each case, for (A) the registration sale by the Underwriters of the Shares and the sales to the Underwriters pursuant to this AgreementAgreement and, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in any employee or director compensation, dividend reinvestment, savings, benefit or other plan or arrangement of the Registration Statement, Company existing as of the Pricing Prospectus and date hereof (excluding the Prospectusexhibits thereto); provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j4(m) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(ln) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and Pre-Pricing Prospectus or the then most recent Prospectus;
(mo) not tothe Company will not, and to will cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;; and
(np) to use its reasonable best efforts either (i) to maintain cause the listing of the Shares Common Stock to be listed for quotation on the NYSE, (ii) to list, Nasdaq and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;such listing; and
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 2 contracts
Samples: Underwriting Agreement (MCG Capital Corp), Underwriting Agreement (MCG Capital Corp)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as the Representatives may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representatives promptly and, if requested by the UnderwritersRepresentatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representatives immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters Representatives promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representatives promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representatives and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representatives shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the UnderwritersRepresentatives, for their the Representatives’ review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representatives shall reasonably object have objected in writing; and to promptly notify the Underwriters Representatives of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), to deliver to the Representatives, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) to furnish to the Underwriters one copy Representatives copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters, as may be reasonably requested;
(ij) if requested by the Representatives, to furnish to the Underwriters promptly for Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any information or documents filed with or furnished to the Commission materials pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)clause if such materials are available via XXXXX;
(jk) to apply the net proceeds from the sale of the Units and the sale of the Private Placement Warrants in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus or the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (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, (iv) the qualification of the Units for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange or qualification of the Units for listing on the NYSE and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA, including the legal fees (not to exceed $25,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Units, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and to the Underwriters’ sales forces, including, without limitation, the Company’s 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 costs of all Written Testing-the-Waters Communications and Testing-the-Waters Communications, (ix) the costs and expenses of qualifying the Units for inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (xi) the performance of the Company’s other obligations hereunder;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any other securities of the Company that are substantially similar to the Units, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for that the Company may (Aa) issue and sell warrants (which will have the registration same terms as the Private Placement Warrants) as contemplated by the Subscription Agreement and the Insider Letter, (b) issue and sell the Additional Units on exercise of the Shares and option provided for in Section 1 hereof, (c) register with the sales Commission pursuant to the Underwriters pursuant to this Registration Rights Agreement, (B) issuances in accordance with the terms of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementRights Agreement, the Pricing Prospectus and resale of the Prospectussecurities covered thereby, and (Cd) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described issue securities in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or connection with a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursBusiness Combination;
(kn) at least one business day prior to the time of purchase, if the Sponsor shall have caused the purchase price for the Private Placement Warrants to issue no be wired to the Company, the Company shall direct the trustee under the Trust Agreement to deposit a portion of the purchase price for the Private Placement Warrants equal to the product of (i) the number of Units sold in the public offering as of such time purchase or additional time of purchase pursuant to which the Underwriters enjoyed a discount from the price to the public and (ii) the difference between the public offering price per Unit as set forth on the cover of the Prospectus and $10.00, to hold such funds in escrow therein;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to provide the Representatives with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCompany, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Company, or the offering of the SharesUnits, and to issue no such press release or communications or hold such press conference without the UnderwritersRepresentatives’ prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesUnits, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesUnits;
(nr) to use its reasonable best efforts either (i) to cause the Units, including the shares of Common Stock and the Public Warrants, to be listed on the NYSE and to maintain the listing of the Shares Units, including the Common Stock and the Public Warrants, on the NYSE;
(s) for a period commencing at the Effective Time and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, (ii) to list, and the Company will use its best efforts to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) registration of the 1934 Act or (iii) to arrange for the quotationUnits, Common Stock and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary Warrants under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.provisions
Appears in 2 contracts
Samples: Underwriting Agreement (Far Peak Acquisition Corp), Underwriting Agreement (Far Peak Acquisition Corp)
Certain Covenants of the Company. The Company hereby agreesagrees as follows:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as the Representatives may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representatives promptly and, if requested by the UnderwritersRepresentatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide notify the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by Representatives immediately upon an event that causes the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filinglonger qualify as an EGC;
(fe) to advise the Underwriters promptly of the happening of if, at any event known to the Company within time during the period during which when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Sharessecurities, which event could require the making of any change in Registration Statement shall cease to comply with the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light requirements of the circumstances under which they are made, not misleading, and, during such time, subject Act with respect to Section 4(d) hereof, to prepare and furnish, at eligibility for the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow use of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h) to furnish to the Underwriters one copy of form on which the Registration Statement, as initially Statement was filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
to (i) to furnish to promptly notify the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholdersRepresentatives, (ii) copies of all annual, quarterly and current reports filed promptly file with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a new registration statement under the Act Act, relating to the offer and sale of any shares of Common Stock securities, or securities convertible into a post-effective amendment to the Registration Statement, which new registration statement or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities post-effective amendment shall comply with the requirements of the Company that are substantially similar Act and shall be in a form satisfactory to Common Stockthe Representatives, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and its best efforts to cause its Subsidiaries not to, take, directly such new registration statement or indirectly, any action designed, or which has constituted or might reasonably be expected post-effective amendment to cause or result in, become effective under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.as soon as practicable,
Appears in 2 contracts
Samples: Underwriting Agreement (Peridot Acquisition Corp. II), Underwriting Agreement (Peridot Acquisition Corp.)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representative may reasonably designate and to maintain such qualifications in effect so long as the Representative may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representative promptly and, if requested by the UnderwritersRepresentative, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representative immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters Representative promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representative promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representative and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representative shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the UnderwritersRepresentative, for their the Representative’s review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representative shall reasonably object have objected in writing; and to promptly notify the Underwriters Representative of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), to deliver to the Representative, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) to furnish to the Underwriters one copy Representative two (2) copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters;
(ij) if requested by the Representative, to furnish to the Underwriters promptly for Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any information or documents filed with or furnished to the Commission materials pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)clause if such materials are available via XXXXX;
(jk) to apply the net proceeds from the sale of the Units in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus or the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (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, (iv) the qualification of the Units for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange or qualification of the Units for listing on the NYSE MKT and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA, including the legal fees (not to exceed $25,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Units, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and to the Underwriters’ sales forces, including, without limitation, the Company’s 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 costs of all Exempt Oral Communications and Covered Exempt Written Communications, (ix) the costs and expenses of qualifying the Units for inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (xi) the performance of the Company’s other obligations hereunder;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesCredit Suisse, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any other securities of the Company that are substantially similar to the Units, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for that the Company may (Aa) issue and sell the registration Private Placement Warrants, (b) issue and sell the Additional Units on exercise of the option provided for in Section 1 hereof, (c) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Warrants and Common Stock issuable upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the ProspectusWarrants, and (Cd) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described issue securities in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or connection with a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursBusiness Combination;
(kn) at least one business day prior to the time of purchase, if the Sponsor shall have caused the purchase price for the Private Placement Warrants to issue no be wired to the Company, the Company shall direct the trustee under the Trust Agreement to deposit such funds into the Trust Account and to hold such funds in escrow therein;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to provide the Representative with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCompany, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Company, or the offering of the SharesUnits, and to issue no such press release or communications or hold such press conference without the Underwriters’ Representative’s prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesUnits, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesUnits;
(nr) to use its reasonable best efforts either (i) to cause the Units, including the shares of Common Stock and the Public Warrants, to be listed on the NYSE MKT and to maintain the listing of the Shares Units, including the Common Stock and the Public Warrants, on the NYSENYSE MKT;
(s) for a period commencing at the Effective Time and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, (ii) to list, and the Company will use its best efforts to maintain the listing ofregistration of the Units, Common Stock and Warrants under the Shares on any other national securities exchange registered provisions of the Exchange Act, except, in the case of the Units, after the completion of a Business Combination; the Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except, in the case of the Units, after the completion of a Business Combination) without the prior written consent of the Representative; “Liquidation” means the distributions of the Trust Account to the Public Stockholders in connection with the redemption of shares of Common Stock held by the Public Stockholders pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation terms of the Company’s Amended and Restated Certificate of Incorporation, as amended, if the Company fails to consummate a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.Business Combination;
Appears in 2 contracts
Samples: Underwriting Agreement (Hennessy Capital Acquisition Corp. III), Underwriting Agreement (Hennessy Capital Acquisition Corp. III)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as the Representatives may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representatives promptly and, if requested by the UnderwritersRepresentatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representatives immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters Representatives promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representatives promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representatives and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representatives shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the UnderwritersRepresentatives, for their the Representatives’ review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representatives shall reasonably object have objected in writing; and to promptly notify the Underwriters Representatives of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), to deliver to the Representatives, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) to furnish to the Underwriters one copy Representatives two (2) copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters;
(ij) if requested by the Representatives, to furnish to the Underwriters promptly for Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any information or documents filed with or furnished to the Commission materials pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)clause if such materials are available via XXXXX;
(jk) to apply the net proceeds from the sale of the Units in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus or the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (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, (iv) the qualification of the Units for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange or qualification of the Units for quotation on the NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA, including the legal fees (not to exceed $30,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Units, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, 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 pre-approved aircraft chartered in connection with the road show, the costs of all Exempt Oral Communications and Covered Exempt Written Communications, (ix) the costs and expenses of qualifying the Units for inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (xi) the performance of the Company’s other obligations hereunder;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesUBS, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any other securities of the Company that are substantially similar to the Units, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for that the Company may (Aa) issue and sell the registration Private Placement Warrants, (b) issue and sell the Additional Units on exercise of the option provided for in Section 1 hereof, (c) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Warrants and Common Stock issuable upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the ProspectusWarrants, and (Cd) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described issue securities in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or connection with a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursBusiness Combination;
(kn) at least one business day prior to the time of purchase, if the Sponsor shall have caused the purchase price for the Private Placement Warrants to issue no be wired to the Company, the Company shall direct the trustee under the Trust Agreement to deposit such funds into the Trust Account and to hold such funds in escrow therein;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to provide the Representatives with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCompany, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Company, or the offering of the SharesUnits, and to issue no such press release or communications or hold such press conference without the UnderwritersRepresentatives’ prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesUnits, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesUnits;
(nr) to use its reasonable best efforts either (i) to cause the Units, including the shares of Common Stock and the Public Warrants, to be listed for quotation on the NASDAQ and to maintain the listing of the Shares Units, including the Common Stock and the Public Warrants, for quotation on the NYSENASDAQ;
(s) for a period commencing at the Effective Time and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, (ii) to list, and the Company will use its best efforts to maintain the listing ofregistration of the Units, Common Stock and Warrants under the Shares on any other national securities exchange registered provisions of the Exchange Act, except, in the case of the Units, after the completion of a Business Combination; the Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except, in the case of the Units, after the completion of a Business Combination) without the prior written consent of the Representatives; “Liquidation” means the distributions of the Trust Account to the Public Stockholders in connection with the redemption of shares of Common Stock held by the Public Stockholders pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation terms of the Company’s Amended and Restated Certificate of Incorporation, as amended, if the Company fails to consummate a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.Business Combination;
Appears in 2 contracts
Samples: Underwriting Agreement (Hennessy Capital Acquisition Corp II), Underwriting Agreement (Hennessy Capital Acquisition Corp II)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares Offered ADSs for offering and sale under the securities or blue sky laws of such states states, countries or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the SharesOffered ADSs; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesOffered ADSs); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Offered ADSs for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Offered ADSs, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Offered ADSs may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesOffered ADSs; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object have objected in writing; and to promptly notify the Underwriters you of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesOffered ADSs, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(g) to furnish make generally available to its stockholders security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year an annual report (including a consolidated balance sheet and statements of incomesuch twelve-month period but in any case not later than [•], stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)2011;
(h) to furnish to the Underwriters one copy you three copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits theretothereto and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to you as early as practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand the Subsidiaries which have been read by the Company’s independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)9(k) hereof;
(j) for a period to apply the net proceeds from the sale of 90 the Offered ADSs in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Offered ADSs and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(k) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(l) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesUBS and Jefferies, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Ordinary Shares, ADSs or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, ADSs or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Ordinary Shares, ADSs or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, ADSs or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Ordinary Shares, ADSs or any other securities of the Company that are substantially similar to Ordinary Shares, ADSs or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Ordinary Shares, ADSs or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares offer and sale of the sales to the Underwriters pursuant to Offered ADSs as contemplated by this Agreement, (B) issuances of Common Stock Ordinary Shares and delivery of ADSs upon the exercise of stock options or warrants disclosed as outstanding in granted under the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to Company’s stock option plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, (C) the grant or issuance stock options or warrants to employees, consultants or directors in the ordinary course of business under the Company’s stock option plans described in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus and (D) the issuance of Ordinary Shares and the delivery of ADSs by the Company as consideration in connection with an acquisition of a business or line of business, joint ventures, commercial relationships or other strategic transactions, in each case reasonably related to the business conducted by the Company as described in the Prospectus, from a third party that is not an affiliate (within the meaning of Rule 405 under the Act) of the Company; provided that issuances pursuant to clause (D) will not exceed 10% of the Ordinary Shares post-IPO and recipients of securities pursuant to clause (B), (C) or (D) agree to be bound by the terms of the Lock-Up Agreement set forth as Exhibit A hereto; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(l) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(km) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the SharesOffered ADSs, without the Underwriters’ your prior consent, which shall not be unreasonably withheld;
(ln) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Ordinary Shares or ADSs by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesOffered ADSs, in each case other than the Registration Statement and the then most recent Prospectus;
(mo) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesOffered ADSs;
(np) to use its reasonable best efforts either (i) to cause the Ordinary Shares and the Offered ADSs to be listed on the NYSE and to maintain the such listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common StockOrdinary Shares;
(r) to indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered ADSs and on the execution, delivery and performance of this Agreement; to make all payments to be made by the Company hereunder without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges, in which event, to pay such additional amounts as may be necessary in order 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;
(s) [upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, trade names, service marks and corporate logo for use on the website, if any, operated by such Underwriter solely for the purpose of facilitating the on-line offering of the Offered ADSs (the “License”); provided, however, that the License is granted without any fee and may not be assigned or transferred to any person other than affiliates of such Underwriter][to be included if on-line marketing is contemplated]; and
(pt) to apply comply with the net proceeds received by it from Xxxxxxxx-Xxxxx Act, to the sale of extent applicable, and to use its best efforts to cause the Shares Company’s directors and officers, in their capacities as such, to comply with the manner described in Xxxxxxxx-Xxxxx Act, to the Prospectus under “Use of Proceeds”extent applicable.
Appears in 2 contracts
Samples: Underwriting Agreement (Sequans Communications), Underwriting Agreement (Sequans Communications)
Certain Covenants of the Company. the Purchaser and the Selling Stockholder. The Company hereby agreesCompany, the Purchaser, and the Selling Stockholder agree as follows:
(a) The Company and the Purchaser shall use commercially reasonable efforts to have the Registration Statement declared effective on or before the Closing Date and shall make any required filing of the Prospectus pursuant to Rule 424(b) in the manner and within the time period required by Rule 424(b).
(b) The Company shall not mail or cause to be mailed a notice of redemption of $85,965,000 principal amount of Notes to holders of record of the Notes sooner than the second business day following the date of this Agreement.
(c) The Company shall use reasonable commercial efforts to have the Purchased Shares and up to 467,000, in the aggregate, of Payment Shares and Make-whole Shares listed, subject to official notice of issuance, on the NYSE on or before the Closing Date.
(d) The Company shall furnish to the Purchaser and the Selling Stockholder two signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including all exhibits thereto and all documents incorporated by reference therein.
(e) Subject to Section 3(f), the Company shall maintain the effectiveness of the Registration Statement from the Closing Date until ten Exchange Business Days following the settlement of the Company's obligations, if any, under the Forward Purchase Agreement or such earlier date upon which the Purchaser, as agent for the Selling Stockholder, has notified the Company that all of the Shares (including the Payment Shares and Make-whole Shares, if any) have been sold by the Purchaser on behalf of the Selling Stockholder (the "Effective Period"). During the Effective Period, the Company shall:
(i) file all documents required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations;
(ii) advise the Purchaser and the Selling Stockholder promptly after the Company receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Prospectus, or the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amendment or supplementation of the Registration Statement or Prospectus or for additional information; and in the event of the issuance of any such stop order by the Commission or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, promptly use commercially reasonable efforts to obtain its withdrawal;
(iii) subject to Section 3(e)(iv) and 3(f), prepare and file such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to comply with the requirements of Section 10(a)(3) of the 1933 Act;
(iv) furnish the Purchaser and the Selling Stockholder with a copy of any proposed amendment or supplement to the Registration Statement or Prospectus (other than any document proposed to be filed by the Company pursuant to Section 13, 14 or 15(d)of the 1934 Act) a reasonable amount xx xxxx xxxxxx xxx xxxxxxxx xxxxxx xx xuch amendment or supplement with the Commission and with such other information as the Purchaser or Selling Stockholder may from time to time reasonably request concerning the Company and its subsidiaries;
(v) advise the Purchaser and the Selling Stockholder promptly after the Company receives notice thereof of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission;
(vi) furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Purchaser, as agent for the Selling Stockholder, may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or subject itself to taxation in respect of doing business in any such jurisdiction in which it is not otherwise so subject or to consent to the service of process under the laws of any such jurisdiction state (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters Purchaser, as agent for the Selling Stockholder, of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(bvii) to make available to the Underwriters in New York CityPurchaser, as agent for the Selling Stockholder, as soon as practicable after the date of this AgreementClosing Date, and thereafter from time to time to furnish to the UnderwritersPurchaser, 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 this Agreementthe Registration Statement) as the Underwriters Purchaser may reasonably request for the purposes contemplated by the 1933 Act; in case and
(viii) furnish, as soon as practicable after the Underwriters are required Closing Date, and thereafter from time to deliver (whether physically or through compliance with Rule 172 under time to the Act or any similar rule) in connection with the sale NYSE such number of copies of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) Prospectus (or of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and 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 may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required NYSE under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness 153 of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 1933 Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing;Regulations.
(f) The Company shall provide prompt notice, confirmed in writing, to advise the Underwriters promptly Purchaser and the Selling Stockholder of (i) the discovery of any information or the happening of any event known to the Company within which, in the period during which a prospectus is required by judgment of the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesCompany, which event could would require the making of any change in the Prospectus then being used used, or in the information incorporated therein by reference, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and(ii) the Company's determination, during such timefor any reason, subject that it is necessary to Section 4(damend or supplement the Prospectus, or (iii) hereofthe Company's election, for any business reason that the Company reasonably deems sufficient, to prepare and furnish, at the Company’s expense, delay filing an amendment or amendment to the Underwriters promptly Registration Statement or Prospectus that it would otherwise be required to file under Section 3(e)(iii). Upon the receipt of such amendments notice, the Purchaser shall immediately discontinue disposition of the Shares pursuant to the Registration Statement on behalf of the Selling Stockholder until such time as the Purchaser and the Selling Stockholder shall have received from the Company an amended or supplements supplemented Prospectus or, if appropriate, written notice from the Company that dispositions of Shares may be resumed without amendment or supplementation of the Registration Statement or Prospectus. The Company shall not have the right to deliver to the Selling Stockholder a Direction to Sell or to elect net share settlement or elect to deliver Make-whole Shares in payment of the Make-whole Amount (as defined in the Forward Purchase Agreement) under the Forward Purchase Agreement until such time as the Company shall have filed with the Commission such amendment or supplement to the Registration Statement or Prospectus as may be necessary required and shall have delivered an amended or supplemented Prospectus to reflect any such change;the Purchaser and Selling Stockholder or shall have provided, if appropriate, written notice to the Purchaser and Selling Stockholder that dispositions of Shares may be resumed without amendment or supplementation of the Registration Statement or Prospectus.
(g) The Purchaser and the Selling Stockholder shall each provide prompt notice, confirmed in writing, to furnish the Company of the discovery of any information or the happening of any event known to the Purchaser or the Selling Stockholder, respectively, which would require the making of any change in the information furnished to the Company by the Purchaser or the Selling Stockholder, respectively, for use in the Prospectus then being used so that such information would not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements included in such information, in the light of the circumstances in which they are made, not misleading.
(h) The Purchaser shall inform the Company of its intent to sell any of the Purchased Shares on behalf of the Selling Stockholder, other than pursuant to a Direction to Sell, sufficiently in advance of such sale to enable the Company to verify that the Prospectus then being used will meet the requirements of the 1933 Act at the time of the intended sales and to amend such Prospectus if it will not meet those requirements.
(i) The Company shall apply the net proceeds from the sale of the Purchased Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company shall timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its stockholders security holders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and earnings statements of income, stockholders’ equity and cash flow of the Company and satisfying the Subsidiaries for such fiscal year, accompanied by a copy provisions of Section 11(a) of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);1933 Act.
(hk) The Company, if necessary or appropriate, shall file a registration statement pursuant to furnish Rule 462(b) under the 1933 Act to the Underwriters one copy extent necessary to register the offering and sale of all Payment Shares and Make-whole Shares issued under the Forward Purchase Agreement.
(l) The Company shall pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, as initially filed with any Preliminary Prospectus, the CommissionProspectus, and of all any amendments or supplements thereto, including, if requested, all exhibits thereto;
(i) to furnish and the printing and furnishing of copies of each thereof to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act Purchaser and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities Selling Stockholder (including costs of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer mailing and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (ishipment), (ii) or (iii)the registration, exceptissue, in each case, for (A) the registration sale and delivery of the Shares and the sales to the Underwriters pursuant to this AgreementPurchaser, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (Ciii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution producing and/or 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 directly or indirectlythe Purchaser and the Selling Stockholder (including costs of mailing and shipment), offer or sell any Shares by means of any “prospectus” (within iv) the meaning qualification of the ActShares for offering and sale under state securities laws, (v) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, and (iivi) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation performance of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”'s other obligations hereunder.
Appears in 2 contracts
Samples: Purchase Agreement (Conseco Inc), Purchase Agreement (Conseco Inc)
Certain Covenants of the Company. The Company hereby agreesagrees as follows:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as the Representatives may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representatives promptly and, if requested by the UnderwritersRepresentatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representatives immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) if, at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, the Registration Statement shall cease to comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify the Representatives, (ii) promptly file with the Commission a new registration statement under the Act, relating to the Shares, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to the Representatives, (iii) use its best efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify the Representatives of such effectiveness and (v) take all other action necessary or appropriate to permit the public offering and sale of the Shares 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;
(f) to advise the Underwriters Representatives promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representatives promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representatives and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representatives shall reasonably object in writing;
(eg) subject to Section 4(d4(f) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the UnderwritersRepresentatives, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representatives shall reasonably object have objected in writing; and to promptly notify the Underwriters Representatives of such filing;
(fh) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(f) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(gi) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), to deliver to the Representatives, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(j) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company Representatives and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h) to furnish counsel to the Underwriters one copy copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters;
(ik) if requested by the Representatives, to furnish to the Underwriters promptly for Representatives as early as practicable prior to the time of purchase and each additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar shall not be required to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of furnish any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters materials pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that clause if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consentsuch materials are available via XXXXX;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares Units in the manner described in set forth under the Prospectus under caption “Use of Proceeds”.” in the Prospectus and to file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(m) 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 any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any share or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters, (v) any listing of the Units, the Class A Ordinary Shares and the Public Warrants on any securities exchange or qualification of the Units for quotation on Nasdaq and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA, including the legal fees (not to exceed $15,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the expenses of investigations and background checks, not to exceed $4,000 per person (in the case investigations and background checks in U.S. jurisdictions) and $5,000 per person (in the case of investigations and background checks in non-U.S. jurisdictions)
Appears in 2 contracts
Samples: Underwriting Agreement (Bridgetown Holdings LTD), Underwriting Agreement (Bridgetown Holdings LTD)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementRegistration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, possible and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required agrees to file in a timely manner under Rule 424(bsuch Rule), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of the Shares; and, during such period, to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(gh) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period but not later than eighteen months after the effective date of the Registration Statement;
(i) to furnish to its stockholders shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholdersshareholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized certified independent certified public accountants duly registered with the Public Company Oversight Accounting Boardaccountants);
(hj) to furnish to the Underwriters one copy you five signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(ik) to furnish to you promptly and, upon request, to each of the other Underwriters promptly for a period of three five years from the date of this Agreement (i) copies of any reports, proxy statements, reports or other communications which the Company shall send to its stockholdersstockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 2010-F or 6K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission and Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listedlisted (other than any documents or reports for which confidential status has been granted or which are confidential as a matter of law), and (iv) such other information as you may reasonably request regarding the Company or the Subsidiaries; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for Company may satisfy the purposes requirements of this Section 4(i)subsection by making any such reports, communications or information generally available on its website or by filing such information with the commission via Xxxxx;
(jl) for to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent copy of the Representativeslatest available unaudited interim and monthly consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company’s certified independent public accountants, as stated in their letter to be furnished pursuant to Section 9(h) hereof;
(m) 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;
(n) not to (i) sell, offer to sell, contract or agree to sell, hypothecate, hedge, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or (iiiii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securitiesStock, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or otherwise, for a period of 180 days after the date hereof (iv) publicly announce an intention to effect any transaction specified in clause the “Lock-Up Period”), without the prior written consent of UBS, except for (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (Bii) the registration on Form S-8 of shares of Common Stock issuable under the 1996 Shares Option Plan and the 2005 Incentive Award Plan or otherwise issued for compensatory purposes by the Company’s predecessors, in each case as described in the Registration Statement, (iii) the issuance of Common Stock to Alcatel as disclosed in the Registration Statement and the Prospectus, (iv) issuances of Common Stock upon conversion of convertible notes of the Company disclosed as outstanding in the Registration Statement and the Prospectus, (v) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus Statement and the Prospectus, and (Cvi) the issuance of employee stock options not exercisable during the Lock-Up Period (or restricted stock awards which do not vest during the Lock-Up Period or are subject to a Lock-up Agreement) pursuant to stock option plans the 2005 Incentive Award Plan described in the Registration Statement, the Pricing Prospectus Statement and the Prospectus; provided, however, that if (ai) during the period that begins on the date that is fifteen (15) 15 calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; , or (bii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) -day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) 15 calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;.
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(no) to use its reasonable best efforts either (i) to maintain cause the listing of the Shares Common Stock to be approved for quotation on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 ActNASDAQ National Market;
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock;
(q) to ensure that the Reserved Shares will be restricted to the extent required by the NASD and its rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement; and to comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Reserved Shares are offered in connection with the Directed Share Program; and
(pr) to apply the net proceeds received by it from the sale make all payments with respect to capital stock of the Shares in the manner described in the Prospectus under “Use of Proceeds”WorldSpace China for capital as they become due.
Appears in 2 contracts
Samples: Underwriting Agreement (WorldSpace, Inc), Underwriting Agreement (WorldSpace, Inc)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or corporation, subject itself to taxation in any such jurisdiction foreign taxation, or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon promptly as possible, practicable; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, and if requested by the Underwritersyou, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed prior to the time of purchase by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall have reasonably object objected in writing; and to promptly notify the Underwriters you of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require require, in the case of an event that occurs prior to the availability of the Prospectus, the making of any change in the Disclosure Package then being used or, in the case of an event that occurs when the Prospectus is available, the making of any change in the Prospectus then being used so that the Prospectus such Disclosure Package or Prospectus, as applicable, would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement such Disclosure Package or Prospectus, as applicable, to cause such Disclosure Package or Prospectus, as applicable, to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Disclosure Package or Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(g) to furnish make generally available to its stockholders security holders, and to deliver to you, unless such document is publicly available on the Commission’s website through the Electronic Data Gathering and Retrieval System (“EXXXX”), an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of such twelve-month period but in any case not later than the first date by which the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered is required to file with the Public Company Oversight Accounting Board)Commission a Quarterly Report on Form 10-Q or Annual Report on Form 10-K that is required to include financial statements covering a period that includes the last month of such twelve-month period;
(h) to furnish to the Underwriters one copy you five copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to you as early as reasonably practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand the Subsidiaries which have been read by the Company’s independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)9(c) hereof;
(j) for a period of 90 to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(k) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesManaging Underwriters, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the ProspectusProspectus and the filing of one or more registration statements on Form S-8 relating to employee benefit plans of the Company, and (C) the issuance of employee stock options not exercisable exercisable, and restricted stock that does not vest, during the Lock-Up Period pursuant to stock option plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(k) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kl) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consentconsent (such consent not to be unreasonably withheld);
(lm) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mn) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(no) to use its reasonable best efforts either (i) to maintain the listing of the Shares Common Stock, including the Shares, on the NYSE, (ii) to list, NASDAQ and to maintain such listing for so long as a prospectus is required by the listing of, Act to be delivered (whether physically or through compliance with Rule 172 under the Shares on Act or any other national securities exchange registered pursuant to Section 6(asimilar rule) in connection with the sale of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 ActShares;
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(pq) to apply the net proceeds received by it extent not otherwise available on EXXXX and upon request in writing, to furnish promptly to you and to each of the other Underwriters for a period of five years from the sale date of this Agreement (i) copies of any reports or other communications that the Shares in Company shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, transition, quarterly and current reports filed with the manner described in Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Prospectus under “Use of Proceeds”Commission.
Appears in 2 contracts
Samples: Underwriting Agreement (Kaiser Aluminum Corp), Underwriting Agreement (Kaiser Aluminum Corp)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Underwriter may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters Underwriter in New York City, as soon as practicable after the date of this Agreement, and thereafter from time to time to furnish to the UnderwritersUnderwriter, 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 date of this Agreement) as the Underwriters Underwriter may request for the purposes contemplated by the Act; in case the Underwriters are Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission Commissions and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters Underwriter promptly and, if requested by the UnderwritersUnderwriter, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters Underwriter promptly, and, if requested by the UnderwritersUnderwriter, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Underwriter promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Underwriter and their its counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Underwriter shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the UnderwritersUnderwriter, for their its review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Underwriter shall reasonably object in writing; and to promptly notify the Underwriters Underwriter of such filing;
(f) to advise the Underwriters Underwriter promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters Underwriter promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to make generally available to its security holders, and to deliver to the Underwriter, an earnings statement of the Company and its Subsidiaries (which need not be audited but shall satisfy the provisions of Rule 158(a) under the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than [·].
(h) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(hi) to furnish to the Underwriters Underwriter one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(ij) to furnish to the Underwriters Underwriter promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i5(j);
(jk) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters Underwriter pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(k) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kl) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ Underwriter’s prior consent;
(lm) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(mn) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(no) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Exchange Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Exchange Act;; and
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) at the Company’s expense, to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; provided, however, that, without relieving the Company of the obligation to so make available and furnish such copies, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(c) in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) deliver, in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, as the case may be; provided, however, that, without relieving the Company of the obligation to so prepare such amendment or amendments, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(cd) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement thereto to be filed with the Commission and become declared effective before the Shares may be maybe sold, the Company will use its best reasonable commercial efforts to cause the Registration Statement or such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(de) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its reasonable best efforts to obtain the lifting or removal of such order as soon as possible; provided, however, that, without relieving the Company of the obligation to so advise, confirm and use its reasonable best efforts, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Statement or the Prospectus, the Prospectus or including by filing any Issuer Free Writing Prospectus documents that would be incorporated therein by reference, and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of the Shares; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filingperiod, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) ; provided, however, that, without relieving the Company of the obligation to so prepare and furnish such amendments or supplements, the Company shall not be required to its stockholders as soon as practicable pay the costs and expenses thereof after the end expiration of each fiscal year an annual report (including a consolidated balance sheet and statements nine months after the date of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)this Agreement;
(h) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act and which may be unaudited) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than, March 1, 2005;
(i) to furnish to the Underwriters one copy you five copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(ithereto and documents incorporated by reference therein) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) for a period of 90 days after to apply the date hereof (net proceeds from the “Lock-Up Period”), without the prior written consent sale of the RepresentativesShares in the manner set forth under the caption “Use of proceeds” in the Prospectus;
(k) to pay all costs, not to expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, each Pre-Pricing Prospectus, each Prospectus Supplement, the Prospectus and, except as otherwise provided in this Section 4, any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, 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 Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the legal fees and filing fees and other disbursements of counsel to the Underwriters relating to NASD matters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, 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 (ix) the performance of the Company’s other obligations hereunder;
(l) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common StockStock for a period of 90 days after the date hereof (the “Lock-Up Period”), (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any without the prior written consent of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable Representatives, except for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (Bii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus Statement and the Prospectus, and (Ciii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, Statement and the Pricing Prospectus and the Prospectus; provided, however, that if (aiv) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior Common Stock pursuant to the time of purchase, to issue no press release or other communication directly or indirectly Company’s dividend reinvestment and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) stock purchase plan as described in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause use its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected best efforts to cause or result in, continue to qualify as a REIT under the 1934 Act or otherwise, the stabilization or manipulation Sections 856 through 860 of the price Code, unless the Company’s board of any security directors in good faith determines by resolution that it is in the best interests of the Company Company’s stockholders not to facilitate the sale or resale of the Shares;so qualify; and
(n) to use its reasonable best efforts either (i) to maintain cause the listing of the Shares Common Stock to be listed on the NYSE, (ii) to list, New York Stock Exchange and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”such listing.
Appears in 1 contract
Samples: Underwriting Agreement (Nationwide Health Properties Inc)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required reasonably request for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York CityNashville, Tennessee, Little Rock, Arkansas and in Toronto and Montreal as soon as practicable after the date of this AgreementRegistration Statement becomes effective (as to the U.S. Prospectus) or after the filing thereof (as to the Canadian Prospectus), and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus Prospectuses (or of the Prospectus Prospectuses as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act1933 Act and the Canadian Securities Laws; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act1933 Act in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus Prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act;
(c) ifnot to file, at either prior to the time this Agreement is executed and deliveredEffective Date or thereafter during such period as a prospectus required by law to be delivered in connection with sales of the Shares by the Underwriters or dealer, it is necessary for any post-effective amendment or supplement to the Registration Statement or the Prospectuses unless a Rule 462(bcopy thereof shall first have been submitted to the Underwriters within a reasonable period of time prior to the proposed filing thereof and the Underwriters, acting reasonably, shall not have objected thereto;
(d) Registration Statement to be filed comply with the Commission requirements of the PREP Procedures and become effective before General Instructions of Form F-10 and file the Shares may be sold, Canadian Supplemented Prospectus with the Company will Reviewing Authority and Qualifying Authorities no later than the day which is two Business Days following the date of this Agreement; to use its reasonable best efforts to obtain a receipt for the Canadian Prospectus from the Reviewing Authority and each of the Qualifying Authorities and to use its reasonable best efforts to cause such post-effective amendment or such Rule 462(b) the Commission to declare the Registration Statement effective; to be filed and become effectivenotify the Underwriters promptly, and will pay any fees in accordance with confirm the Act as soon as possible, and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice notice in writing, (i) when such the Registration Statement has been filed or has become effective and when any post-effective amendment thereto has been filed or such Rule 462(b) Registration Statement becomes effective, and when any supplement to the U.S. Prospectus or the Canadian Prospectus or any Supplementary Material has become effective and been filed, (ii) if Rule 430A of the receipt of any comments from the Reviewing Authority, any Qualifying Authority or Rule 430C under the Act is usedCommission, when the Prospectus is filed with the Commission pursuant to Rule 424(b(iii) under the Act; the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Reviewing Authority, any Qualifying Authority or the Commission for amendments or supplements to the Registration Statement, any Preliminary the Canadian Final Prospectus, the U.S. Prospectus or any Issuer Free Writing the Canadian Prospectus or for additional information with respect thereto, or (iv) of notice of institution of proceedings for, the issuance by the Commission or the entry of a stop orderReviewing Authority, suspending the effectiveness of the Registration Statement or preventing or suspending the use any Qualifying Authority of any Preliminary Prospectus, the Prospectus stop order or any Issuer Free Writing Prospectus and, if the Commission should enter a stop cease trading order suspending the effectiveness of the Registration Statement or the Canadian Prospectus, or of any order preventing or suspending the use of any the U.S. Preliminary Prospectus or the Canadian Preliminary Prospectus, or the qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceedings for the foregoing purposes or the threat thereof, (v) of the happening of any event during the period mentioned in Subsection 4(f) hereof that makes any statement made in the Registration Statement, the U.S. Prospectus or any Issuer Free Writing Prospectus, to use its best efforts to obtain the lifting Canadian Prospectus untrue or removal of such order as soon as possible; to advise that requires the Underwriters promptly making of any proposal changes in the Registration Statement, the U.S. Prospectus or the Canadian Prospectus in order to amend make the statements therein, in light of the circumstances in which they are made, not misleading, (vi) of the issuance by the Reviewing Authority, any Qualifying Authority, the Commission, blue sky securities regulator or supplement any stock exchange of any order having the effect of ceasing or suspending the distribution of the Shares or the trading in the securities of the Company, or the initiation of any proceedings for such purpose or the threat thereof, and (vii) of receipt by the Company or any Underwriters or attorney of the Company of any other communication from the Reviewing Authority, any Qualifying Authority or the Commission relating to the Company, the Registration Statement, any Preliminary Prospectus, the Canadian Final Prospectus, the U.S. Prospectus or the Canadian Prospectus; if at any Issuer Free Writing Prospectus time the Commission shall issue any order suspending the effectiveness of the Registration Statement or the Reviewing Authority or any Qualifying Authority shall issue any cease trading order or any U.S. state or blue sky securities regulator shall issue any order suspending the distribution of the Shares, to use its reasonable best efforts to obtain the withdrawal of such order at the earliest possible moment; and to provide use its reasonable best efforts to prevent the Underwriters and their counsel copies issuance of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writingorder;
(e) subject to Section 4(d) hereof, to file promptly (i) all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act Act, including any additional documents required to be filed if the Company ceases to be a foreign private issuer, (ii) all reports and other documents required to be filed by the Company with the Reviewing Authority or any Qualifying Authority to comply with Canadian Securities Laws and with the TSX and the Amex to procure and ensure the continued listing of the Shares thereon subsequent to the date of the Prospectuses and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of the Shares; and, during such periodfor so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares, to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be when filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior or pursuant to any proposed filingthe Canadian Securities Laws, and to file no such report, statement unless otherwise publicly available on EXXXX or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filingSEDAR;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, the Canadian Securities Laws which event could require the making of any change in the Prospectus Prospectuses then being used so that the Prospectus Prospectuses would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(dSubsection 4(c) hereof, to prepare and furnishfurnish promptly to the Underwriters, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus the Prospectuses as may be necessary to reflect any such change;
(g) timely file such reports pursuant to furnish the 1934 Act as are necessary to make generally available to its stockholders security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the 1000 Xxx) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the 1000 Xxx) as soon as is reasonably practicable after the end termination of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)twelve-month period;
(h) to furnish to the Underwriters one copy you such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of the Canadian Preliminary Prospectus, and the Canadian Prospectus, and of all amendments thereto, including, if requested, thereto (including all exhibits theretothereto and documents incorporated by reference therein);
(i) unless otherwise publicly available on EXXXX or SEDAR, to furnish to you promptly and, upon request, to each of the other Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, statements or other communications which the Company shall send to its stockholdersshareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 40-F and 6-K, or, if the Company ceases to be a foreign private issuer, on Forms 10-X, 00-X, 0-X and 14A, or such other similar forms as may be designated by the Commission and Commission, (iii) copies of documents or reports filed with any Canadian or U.S. national securities exchange or inter-dealer quotation system on which any class of securities of the Company is listed; provided, however, that any and (iv) such other information as you may reasonably request regarding the Company or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)Subsidiaries;
(j) for to furnish to you as early as practicable prior to the Time of Purchase and any Additional Time of Purchase, but not later than two Business Days prior thereto, a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent copy of the Representativeslatest available unaudited interim or monthly consolidated financial statements of the Company and the Subsidiaries, not which financial statements, if any, have been read by the Company’s independent certified public accountants, as stated in their letter to be furnished pursuant to Subsection 6(f) hereof;
(k) to apply the net proceeds from the sale of the Shares substantially in the manner set forth under the caption “Use of Proceeds” in the Prospectuses;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Form F-X, the Preliminary Prospectuses, the Prospectuses and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares, including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the qualification of the Shares for offering and sale under U.S. state laws and the determination of their eligibility for investment under U.S. state laws as aforesaid (including, with respect to such qualification under U.S. state laws, the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (iv) any listing of the Shares on the TSX or the Amex and any registration thereof under the 1934 Act, (v) any filing for review of the public offering of the Shares by the NASD, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters, (vi) the fees and disbursements of any transfer agent or registrar for the Shares, (vii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, 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 its agreed share of the cost of any aircraft chartered in connection with the road show, and (viii) the performance of the Company’s other obligations hereunder;
(m) use its reasonable best efforts to comply with the 1933 Act and Canadian Securities Laws so as to permit the completion of the distribution of the Shares as contemplated by this Agreement and the Prospectuses;
(n) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) or file or cause to be declared effective a registration statement under the Act 1933 Act, or to file a prospectus under the Canadian Securities Laws, relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common StockStock for a period of 90 days after the date hereof (the “Lock-Up Period”), (iii) enter into any swap or other arrangement that transfers to anotherwithout the prior written consent of Avondale Partners, in whole or in part, any on behalf of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable Underwriters, except for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares under the 1933 Act, the filing of one or more prospectuses under the Canadian Securities Laws relating to the sale of the Shares and the sales of the Shares to the Underwriters pursuant to this Agreement, (Bii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus Statement and the Prospectus, and Prospectuses (Ciii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus Statement and the Prospectus; provided, however, that if Prospectuses and (aiv) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of Stock in connection with acquisitions as contemplated by the earnings release or the material news or material event occursProspectus ;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(no) to use its reasonable best efforts either (i) to satisfy any requirements of the TSX and the Amex to the listing thereof within the time specified in the conditional approval of the TSX for the listing of the Shares; and, for a period of at least five years after the date hereof, will use its reasonable best efforts to effect and maintain the listing of the Shares on the NYSE, Amex (ii) to list, and to maintain or the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, as applicable, on the New York Stock Exchange or NASDAQ National Market) and to maintain will file with the quotation ofAmex (or such other exchange, if applicable) all documents and notices required by the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;Amex (or such other exchange, if applicable); and
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying qualify the Shares Securities for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the SharesSecurities; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesSecurities); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) at the Company’s expense, to make available to the Underwriters in New York City, as soon as practicable after this Agreement becomes effective and in any event not later than 12:00 noon on the business day next succeeding the date of this Agreement, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) and each Issuer Free Writing Prospectus (to the extent not previously delivered) as the Underwriters may request for the purposes contemplated by the Act; provided, however, that notwithstanding anything in this subsection (b) to the contrary, without relieving the Company of the obligation to so make available and furnish such copies, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(c) in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) deliver, in connection with the sale of the Shares Securities, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, as the case may be; provided, however, that, without relieving the Company of the obligation to so prepare such amendment or amendments, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(cd) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement thereto to be filed with the Commission and become declared effective before the Shares Securities may be sold, the Company will use its best reasonable commercial efforts to cause the Registration Statement or such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C 430 under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(de) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its reasonable best efforts to obtain the lifting or removal of such order as soon as possible; provided, however, that, without relieving the Company of the obligation to so advise, confirm and use its reasonable best efforts, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement; and for so long as the delivery of a prospectus is required in connection with the offering or sale of Securities to advise the Underwriters you promptly of any proposal to file any Issuer Free Writing Prospectus, or to amend or supplement the Registration Statement, any Preliminary Statement or the Prospectus, the Prospectus or including by filing any Issuer Free Writing Prospectus documents that would be incorporated therein by reference, and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of Sharesthe Securities; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filingperiod, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company (i) within the period time during which a prospectus relating to the Securities is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus Prospectus, or (ii) at any time prior to the time of purchase which would require the making of any change in the Time of Sale Information then being used so that the Time of Sale Information would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus or Time of Sale Information, as the case may be, as may be necessary to reflect any such change;
(g) ; provided, however, that, without relieving the Company of the obligation to so prepare and furnish such amendments or supplements, the Company shall not be required to its stockholders as soon as practicable pay the costs and expenses thereof after the end expiration of each fiscal year an annual report (including a consolidated balance sheet and statements nine months after the date of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)this Agreement;
(h) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act and which may be unaudited) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than 90 days after the close of the period covered thereby;
(i) to furnish to the Underwriters one copy you five copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(ithereto and documents incorporated by reference therein) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) to apply the net proceeds from the sale of the Securities in the manner set forth under the caption “Use of Proceeds” in the Prospectus;
(k) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, each Pre-Pricing Prospectus, each Prospectus Supplement, each Issuer Free Writing Prospectus, any Time of Sale Information, the Prospectus and, except as otherwise provided in this Section 4, any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Securities including any taxes payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney, the Indenture and any closing documents (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), (iv) the qualification of the Securities for a period offering and sale under state or foreign laws and the determination of 90 days after their eligibility for investment under state or foreign law as aforesaid (including the date hereof legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any filing for review of the public offering of the Securities by the Financial Industry Regulatory Authority (“Lock-Up PeriodFINRA”), without including the prior written consent legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vi) the costs and expenses of the RepresentativesCompany relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Securities to prospective investors and the Underwriters’ sales forces, 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, (vii) any fees charged by rating agencies for rating the Securities, (viii) the fees and expenses of the Trustee (including related fees and expenses of any counsel to the Trustee) and (ix) the performance of the Company’s other obligations hereunder;
(l) not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any United States dollar-denominated debt securities issued 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 and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of guaranteed by the Company that are substantially similar to Common Stockand having a maturity of more than one year from the date of issue, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities such debt securities, without the prior written consent of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any Representative for a period beginning at the time of execution of this Agreement and ending at the later of the economic consequences time of ownership purchase or the lifting of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stocktrading restrictions by the Representative, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, but in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material no event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business later than 15 days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause use its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected best efforts to cause or result in, continue to qualify as a REIT under the 1934 Act or otherwise, the stabilization or manipulation Sections 856 through 860 of the price Code, unless the Company’s board of any security directors in good faith determines by resolution that it is in the best interests of the Company Company’s stockholders not to facilitate the sale or resale of the Sharesso qualify;
(n) that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to use its reasonable best efforts either (i) the Company with respect to maintain the listing offering of the Shares on Securities contemplated hereby (including in connection with determining the NYSEterms of the offering) and not as a financial advisor or a fiduciary to, (ii) to list, and to maintain the listing or an agent of, the Shares on Company or any other national securities exchange registered pursuant to Section 6(a) person; that neither of the 1934 Act Representatives, nor any other Underwriter, is advising the Company or (iii) any other person as to arrange any legal, tax, investment, accounting or regulatory matters in any jurisdiction; that the Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and that the Underwriters shall have no responsibility or liability to the Company with respect to such consultations, investigations or appraisals; and that any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) benefit of the 1934 Act;Underwriters and shall not be on behalf of the Company; and
(o) the Company has paid or agrees to maintain a transfer agent and, if necessary under pay the jurisdiction of incorporation required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the Company, a registrar for Act without regard to the Common Stock; and
(pproviso therein and otherwise in accordance with Rules 456(b) to apply the net proceeds received by it from the sale and 457(r) of the Shares in the manner described in the Prospectus under “Use of Proceeds”Act.
Appears in 1 contract
Samples: Underwriting Agreement (Nationwide Health Properties Inc)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representative may reasonably designate and to maintain such qualifications in effect so long as the Representative may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representative promptly and, if requested by the UnderwritersRepresentative, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representative immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters Representative promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representative promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representative and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representative shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the UnderwritersRepresentative, for their the Representative’s review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representative shall reasonably object have objected in writing; and to promptly notify the Underwriters Representative of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), to deliver to the Representative, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) to furnish to the Underwriters one copy Representative two (2) copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters;
(ij) if requested by the Representative, to furnish to the Underwriters promptly for Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any information or documents filed with or furnished to the Commission materials pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)clause if such materials are available via XXXXX;
(jk) to apply the net proceeds from the sale of the Units in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus or the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (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, (iv) the qualification of the Units for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange or qualification of the Units for listing on the NYSE MKT and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA, including the legal fees (not to exceed $25,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Units, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, 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 pre-approved aircraft chartered in connection with the road show, the costs of all Exempt Oral Communications and Covered Exempt Written Communications, (ix) the costs and expenses of qualifying the Units for inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (xi) the performance of the Company’s other obligations hereunder;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesCredit Suisse, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any other securities of the Company that are substantially similar to the Units, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for that the Company may (Aa) issue and sell the registration Private Placement Warrants, (b) issue and sell the Additional Units on exercise of the option provided for in Section 1 hereof, (c) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Warrants and Common Stock issuable upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the ProspectusWarrants, and (Cd) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described issue securities in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or connection with a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursBusiness Combination;
(kn) at least one business day prior to the time of purchase, if the Sponsor shall have caused the purchase price for the Private Placement Warrants to issue no be wired to the Company, the Company shall direct the trustee under the Trust Agreement to deposit such funds into the Trust Account and to hold such funds in escrow therein;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to provide the Representative with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCompany, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Company, or the offering of the SharesUnits, and to issue no such press release or communications or hold such press conference without the Underwriters’ Representative’s prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesUnits, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesUnits;
(nr) to use its reasonable best efforts either (i) to cause the Units, including the shares of Common Stock and the Public Warrants, to be listed on the NYSE MKT and to maintain the listing of the Shares Units, including the Common Stock and the Public Warrants, on the NYSENYSE MKT;
(s) for a period commencing at the Effective Time and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, (ii) to list, and the Company will use its best efforts to maintain the listing ofregistration of the Units, Common Stock and Warrants under the Shares on any other national securities exchange registered provisions of the Exchange Act, except, in the case of the Units, after the completion of a Business Combination; the Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except, in the case of the Units, after the completion of a Business Combination) without the prior written consent of the Representative; “Liquidation” means the distributions of the Trust Account to the Public Stockholders in connection with the redemption of shares of Common Stock held by the Public Stockholders pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation terms of the Company’s Amended and Restated Certificate of Incorporation, as amended, if the Company fails to consummate a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.Business Combination;
Appears in 1 contract
Samples: Underwriting Agreement (Hennessy Capital Acquisition Corp. III)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or corporation, to subject itself to taxation in any such foreign jurisdiction or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object have objected in writing; and to promptly notify the Underwriters you of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(g) to furnish make generally available to its stockholders security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year such twelve-month period but in any case not later than [·] [insert due date of last 10-K or 10-Q that would qualify under Rule 158 as an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)earnings statement covering 12 months after effectiveness];
(h) to furnish to the Underwriters one copy each Managing Underwriter and underwriters’ counsel copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to you as early as practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand the Subsidiaries which have been read by the Company’s independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)9(c) hereof;
(j) for a period to apply the net proceeds from the sale of 90 the Shares in the manner set forth under the caption “Use of proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(k) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(l) to comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesUBS, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, and (C) the issuance of employee stock options options, restricted stock, stock appreciation rights or other stock-based awards to employees or directors that are not exercisable during the Lock-Up Period pursuant to stock option or other stock incentive plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(m) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kn) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consent;
(lo) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mp) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(nq) to use its reasonable best efforts either (i) to maintain cause the listing of Common Stock, including the Shares Shares, to be listed for quotation on the NYSE, (ii) to list, NASDAQ and to maintain such listing for quotation on the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 ActNASDAQ;
(or) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(ps) to apply cause each Directed Share Participant that purchases at least $100,000 of Reserved Shares to execute a Lock-Up Agreement and otherwise to cause the net proceeds received Reserved Shares to be restricted from sale, transfer, assignment, pledge or hypothecation to such extent as may be required by it from the sale NASD and its rules, and to direct the transfer agent to place stop transfer restrictions upon such Reserved Shares during the Lock-Up Period or any such longer period of time as may be required by the NASD and its rules; and to comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Reserved Shares are offered in connection with the manner described in the Prospectus under “Use of Proceeds”Directed Share Program.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; providedprovided that in connection therewith, however, that the Company shall not be required to qualify as a foreign corporation or corporation, subject itself to taxation in any such jurisdiction foreign jurisdiction, or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementRegistration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any a post-effective amendment to the Registration Statement or a registration statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts endeavor to cause such post-effective amendment or such Rule 462(b) Registration Statement registration statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, possible and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement registration statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, you promptly and if requested by the Underwritersyou, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) of a prospectus is required in connection with any the sale of the Shares; and, during such period, to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(gh) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (that will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date that is 45 days after the end of the fourth fiscal quarter following the fiscal quarter that includes the effective date of the Registration Statement or, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, the date that is 90 days after the end of such fourth fiscal quarter (the “Availability Date”);
(i) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report you five (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h5) to furnish to the Underwriters one copy copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(ij) to furnish to you as early as reasonably practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date latest available unaudited interim and monthly consolidated financial statements, if any, of this Agreement the Company and the Subsidiaries that have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 8(c) hereof;
(k) 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, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of any reports, proxy statements, or other communications which each thereof to the Company shall send Underwriters and to its stockholdersdealers (including costs of mailing and shipment), (ii) copies the registration, issue, sale and delivery of all annualthe Shares, quarterly including any stock or transfer taxes and current reports filed with stamp or furnished similar duties payable upon the sale, issuance or delivery of the Shares to the Commission on Forms 20-F or 6-KUnderwriters, or such other similar forms as may be designated by the Commission and (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of documents each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state or reports filed foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the reasonable legal fees, which shall not exceed $10,000, and filing fees and other disbursements of counsel for the Underwriters incurred in connection with such qualifications and determinations) and the printing and furnishing of copies of any national blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the reasonable legal fees, which shall not exceed $15,000, and filing fees and other disbursements of counsel to the Underwriters incurred in connection with such filing, (vii) the fees and disbursements of any class of securities transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company is listedrelating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged with the Company’s prior consent 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 with the Company’s prior consent in connection with the road show, and (ix) the performance of the Company’s and the Selling Stockholder’s other obligations hereunder; provided, however, that nothing contained herein shall affect any information or documents filed with or furnished to agreement that the Commission pursuant to its Electronic Data Gathering, Analysis Company and Retrieval System shall be considered furnished the Selling Stockholder may make for the purposes sharing or allocation of such costs and expenses; provided, further, that except as provided in this Section 4(i)5(m) and Section 7, the Underwriters will bear all of their own costs and expenses, including, the fees of their counsel and any stock transfer taxes arising from the resale of any Shares by them;
(jl) for a period of 90 days after to comply with Rule 433(g) under the date hereof Act;
(the “Lock-Up Period”), without the prior written consent of the Representatives, m) not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock for a period of 90 days after the date hereof (iv) publicly announce an intention to effect any transaction specified in clause the “Lock-Up Period”), without the prior written consent of UBS, except for (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (Bii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), each Preliminary Prospectus or the Pricing Prospectus and the Prospectus, filing of one or more registration statements on Form S-8 relating to employee benefit plans of the Company and (Ciii) the issuance of employee stock options not exercisable exercisable, and restricted stock that does not vest, during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the ProspectusPeriod; provided, however, that if either (ax) during the period that begins beginning on the date that is fifteen (15) 15 calendar days plus three (3) 3 business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; occurs or (by) prior to the expiration of Company announces during the Lock-Up Period, the Company announces Period that it will release earnings results during the sixteen (16) -day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) Lock-Up Period shall continue to apply until the expiration be extended for an additional period of the date that is fifteen (15) 15 calendar days plus three (3) 3 business days after the date on which the issuance of the earnings release is issued or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(ln) not, at any time at or after the execution of this Agreement, Agreement to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;; and
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Samples: Underwriting Agreement (Huron Consulting Group Inc.)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementRegistration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise you of its intention to file or prepare any amendment to the Underwriters Registration Statement or any amendment or supplement to the Prospectus, and the Company will advise you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required agrees to file in a timely manner under Rule 424(bsuch Rule), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of the Shares; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(gh) to make generally available to its security holders, and to deliver to you (unless such document is publicly available on the Commission’s website through the XXXXX database maintained by the Commission), an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but not later than fifteen months after the effective date of the Registration Statement;
(i) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Accounting Oversight Accounting BoardBoard (the “PCAOB”);
(hj) to furnish to the Underwriters each of you one conformed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient conformed copies of the foregoing (other than exhibits) as may reasonably be requested;
(ik) to the extent not otherwise available on XXXXX and upon request, to furnish promptly to you and to each of the other Underwriters promptly for a period of three five years from the date of this Agreement (i) copies of any reports, proxy statements, reports or other communications which the Company shall send to its stockholdersstockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 2010-F or 6K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission and Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed, and (iv) such other information as you may reasonably request regarding the Company or the Subsidiaries;
(l) to furnish to you as early as practicable prior to the Time of Purchase and any Additional Time of Purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the independent certified public accountants, as stated in their letter to be furnished pursuant to Section 8(c) hereof;
(m) 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 any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any agreement among underwriters, any dealer agreements, any statements of information, any custody agreements, 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 Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters incurred in connection with such qualifications and determinations) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on Nasdaq and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters incurred in connection with such filing, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, 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 engaged with the Company’s prior consent, not to be unreasonably withheld, and the cost of any aircraft chartered in connection with the road show, and (ix) the performance of the Company and each Selling Stockholder’s other obligations hereunder; provided, however, that nothing contained herein shall affect any information or documents filed with or furnished to agreement that the Commission pursuant to its Electronic Data Gathering, Analysis Company and Retrieval System shall be considered furnished the Selling Stockholders may make for the purposes sharing or allocation of such costs and expenses; and provided further that except as provided in this Section 4(i)5(m) and Sections 7 and 11, the Underwriters will bear all of their own costs and expenses, including the fees of their counsel;
(jn) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common StockStock for a period of 90 days after the date hereof (the “Lock-Up Period”), (iii) enter into any swap or other arrangement that transfers to anotherwithout the prior written consent of UBS, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable except for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (Bii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus Statement and the Prospectus, and (Ciii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus Statement and the Prospectus; provided. Notwithstanding the foregoing, however, that if if:
(a1) during the period that begins on the date that is fifteen (15) 15 calendar days plus three (3) 3 business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or or
(b2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) -day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(n) shall continue to apply until the expiration of the date that is fifteen (15) 15 calendar days plus three (3) 3 business days after the date on which the issuance of the earnings release or the material news or material event occurs;.
(ko) prior to the time Time of purchasePurchase or the Additional Time of Purchase, as the case may be, to issue no press release or other communication communications directly or indirectly and hold no press conferences conference with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, assets or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consent;
(lp) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, designed to or which has constituted may constitute or which might reasonably be expected to cause or result inresult, under the 1934 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;; and
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or corporation, to subject itself to taxation in any such foreign jurisdiction or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) if, at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, the Registration Statement shall cease to comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a new registration statement under the Act, relating to the Shares, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to you, (iii) use its best efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action necessary or appropriate to permit the public offering and sale of the Shares 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;
(e) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Pre-Pricing Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Pre-Pricing Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d5(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object have objected in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than August 9, 2011;
(i) to furnish to the Underwriters one copy each Managing Underwriter and underwriters’ counsel copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(ithereto and documents incorporated by reference therein) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) for to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 9(e) hereof;
(k) to apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of proceeds” in the Prospectus Supplement;
(l) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(m) to comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act;
(n) beginning on the date hereof and ending on, and including, the date that is 90 days after the date hereof of the Prospectus Supplement (the “Lock-Up Period”), without the prior written consent of the RepresentativesUBS, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the each Pre-Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options options, restricted stock, stock appreciation rights or other stock based awards to employees or directors that are not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration StatementStatement (excluding the exhibits thereto), the each Pre-Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(n) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(ko) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(nr) to use its reasonable best efforts either (i) to cause the Shares to be listed for quotation on the NASDAQ and to maintain the listing of the Shares Common Stock, including the Shares, for quotation on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;NASDAQ; and
(os) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate with the underwriters in qualifying endeavoring to qualify the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate in writing and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) if, at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, the Registration Statement shall cease to comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a new registration statement under the Act, relating to the Shares, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to you, (iii) use its reasonable best efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action reasonably necessary or appropriate to permit the public offering and sale of the Shares 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;
(e) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Pre-Pricing Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its reasonable best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Pre-Pricing Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d5(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall have reasonably object objected in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than May 10, 2011;
(i) to furnish to the Underwriters you one copy for each Managing Underwriter and one copy for underwriters’ counsel copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(ithereto and documents incorporated by reference therein) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) for a period of to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(k) beginning on the date hereof and ending on, and including, the date that is 90 days after the date hereof of the Prospectus Supplement (the “Lock-Up Period”), without the prior written consent of the RepresentativesUnderwriters, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock (other than the common stock to be sold pursuant to this Agreement and securities issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof) or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock for, or any warrants or other rights to purchase purchase, the foregoing, (ii) file or cause to become effective a registration statement under the Act (other than any registration statement on Form S-8) relating to the offer and sale of any Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exchangeable or exercisable for, or exchangeable for Common Stock or any warrants or other rights to purchase Common Stock or any other securities of purchase, the Company that are substantially similar to Common Stockforegoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances bona fide gifts, so long as the recipient agrees in writing with the underwriters to be bound by the terms of this lock-up agreement, (C) dispositions to partners, members or shareholders, so long as the recipient agrees in writing with the underwriters to be bound by the terms of the lock-up agreement, (D) dispositions to any trust for the direct or indirect benefit of this locked up person and/or the immediate family of such person, so long as that suck trust agrees in writing with the underwriters to be bound by the terms of this lock-up agreement, (E) dispositions by certain officers of any shares of Common Stock upon made under their respective existing Rule 10b5-1 trading plan, so long as the exercise dispositions do not exceed 161,742 shares of options or warrants disclosed as outstanding Common Stock in the Registration Statement, the Pricing Prospectus and the Prospectus, aggregate and (CF) the issuance dispositions by an officer and a director of employee stock options not exercisable during the Lock-Up Period pursuant up to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus32,000 shares of Common Stock; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(k) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kl) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication similar communication, except for required 8-Ks and other required filings, directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consent, provided that such press release or communication relates to the offering of the Shares, and provided further that such consent may not be further withheld;
(lm) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mn) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(no) to use its reasonable best efforts either (i) to maintain the listing of the Shares Common Stock, including the Shares, for quotation on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;NASDAQ; and
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agreescovenants and agrees with each of the Underwriters that:
(a) to The Company will prepare the Term Sheet for the Securities, containing solely a description of the final terms of the Securities and the offering thereof, in the form approved by the Representatives and attached as Schedule B hereto, and will file such term sheet pursuant to, and within the time required by, Rule 433(d).
(b) The Company will furnish such information as may be required and otherwise to will cooperate in qualifying the Shares Securities for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; providedSecurities, however, provided that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesSecurities); and to . The Company will promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;.
(bc) to make available to The Company will prepare the Prospectus in a form in compliance with Rule 430B and approved by the Underwriters in and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. (New York CityCity time), as soon as practicable after on or before the second Business Day following the date of this Agreement, Agreement or on such other day as the parties may mutually agree and thereafter from time to time to furnish promptly (and with respect to the Underwritersinitial delivery of such Prospectus, not later than 10:00 A.M. (New York City time) on or before the second Business Day following the date of this Agreement or on such other day as many the parties may mutually agree) to the Underwriters 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 this Agreementthe Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case , which the Prospectus and any amendments or supplements thereto furnished to the Underwriters are will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T.
(d) During (a) the time in which a Prospectus relating to the Securities is required to deliver (whether physically or through compliance with Rule 172 be delivered under the Securities Act or any similar rule(b) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act180 days, the Company will preparewhichever is greater, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters promptly andRepresentatives immediately, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of (i) the receipt of any comments from the Commission relating to any filing of the Company under the Securities Act or the Exchange Act, (ii) any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or (iii) the entry of a stop order, suspending issuance by the effectiveness of the Registration Statement or preventing or suspending the use Commission of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, Prospectus or the Prospectus or of any Issuer Free Writing Prospectusexamination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, to use its best efforts (iv) the suspension of the qualification of the Securities for offering or sale in any jurisdiction and (v) the initiation, threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental agency or authority should issue any such order, the Company will make every reasonable effort to obtain the lifting or removal of such order as soon as possible; . During (a) the time in which a Prospectus relating to the Securities is required to be delivered under the Securities Act or (b) 180 days, whichever is greater, the Company will advise the Underwriters Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus and to provide will furnish the Underwriters and their counsel Representatives with copies of any such documents for review and comment a reasonable amount of time prior to any such proposed filing or use, as the case may be, and to will not file no or use any such amendment or supplement document to which the Representatives or counsel for the Underwriters shall reasonably object in writing;
(e) subject . The Company has given the Representatives notice of any filings made pursuant to Section 4(d) hereof, the Exchange Act within 48 hours prior to file promptly all reports and documents and any information statement required to be filed by the Applicable Time; the Company with will give the Commission in order Representatives notice of its intention to comply with make any such filing from the 1934 Act for so long as Applicable Time to the delivery time of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; purchase and, during such periodif applicable, to provide from the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by time the Representatives give the Company pursuant notice of their intention to exercise the option set forth in Section 131 hereof to purchase Additional Securities to each additional time of purchase, 14 or 15(d) and will furnish the Representatives with copies of the 1934 Act during any such period documents a reasonable amount of time prior to any such proposed filing, as the case may be, and to will not file no or use any such report, statement or document to which the Representatives or counsel for the Underwriters shall reasonably object in writing; and to promptly notify . (e) During (a) the Underwriters of such filing;
(f) to advise the Underwriters promptly of the happening of any event known time in which a Prospectus relating to the Company within the period during which a prospectus Securities is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h) to furnish to the Underwriters one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period180 days, whichever is greater, the Company announces that it will release earnings results during advise the sixteen (16) day period beginning on Representatives promptly and, if requested by the last day of the LockRepresentatives, will confirm such advice in writing when any post-Up Period, then the restrictions imposed by this Section 4(j) shall continue effective amendment to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, becomes effective under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Securities Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementRegistration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the applicable requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement thereto to be filed with the Commission and become declared effective before the Shares may be sold, the Company will use its best efforts endeavor to cause the Registration Statement or such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, possible and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required agrees to file in a timely manner under Rule 424(bsuch Rule), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of the institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Statement or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters' counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of the Shares; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s 's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(gh) to make generally available to its security holders, and to deliver to you, an earning statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but not later than [Insert date twelve months after date of execution], 2006;
(i) to furnish to its stockholders shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ shareholders' equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with accountants), for so long as the Public Company Oversight Accounting Board)shall have a legal obligation to do so;
(hj) to furnish to the Underwriters one copy you and your counsel copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits theretothereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(ik) to the extent not otherwise available on XXXXX, to furnish to you promptly and, upon request, to you and to each of the other Underwriters promptly for a period of three two years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholdersShareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or and 6-K, or such other similar forms as may be designated by the Commission and Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any and (iv) such other information as you may reasonably request regarding the Company or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)Subsidiaries;
(jl) for to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent copy of the Representativeslatest available unaudited interim and monthly (to the extent available) consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company's independent certified public accountants, as stated in their letter to be furnished pursuant to Section 8(f) hereof;
(m) to apply the net proceeds from the sale of the Shares sold by the Company in the manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock Ordinary Shares or securities convertible into or exchangeable or exercisable for Common Stock Ordinary Shares or warrants or other rights to purchase Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock Ordinary Shares or securities convertible into or exercisable or exchangeable for Common Stock or warrants Ordinary Shares or other rights to purchase Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, (iiiii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Ordinary Shares or any securities convertible into or exercisable or exchangeable for Common StockOrdinary Shares, or warrants or other rights to purchase Common Stock or any such securitiesOrdinary Shares, whether any such transaction is to be settled by delivery of Common Stock Ordinary Shares or such other securities, in cash or otherwise otherwise, or (iviii) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iiiii), except, in each case, for a period of 180 days after the date hereof (Athe "Lock-Up Period"), without the prior written consent of UBS, except for (i) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (Bii) issuances of Common Stock Ordinary Shares upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus Statement and the ProspectusProspectus or the 2,802 ordinary shares reserved for issuance to Xxxxxxxx L.P., and (Ciii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus Statement and the Prospectus; provided. Notwithstanding the foregoing, however, that if (a1) during the period that begins on the date that is fifteen (15) 15 calendar days plus three (3) 3 business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; , or (b2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) -day period beginning on the last day of the Lock180-Up Periodday period, then in either case, the restrictions imposed by this Section 4(j5(n) shall continue to apply until the expiration of the date that is fifteen (15) 15 calendar days plus three (3) 3 business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(no) to use its reasonable best efforts either (i) to maintain the listing of cause the Shares to be approved for quotation on the NYSE, (ii) to list, NASDAQ and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;TASE; and
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”Ordinary Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Ituran Location & Control Ltd.)
Certain Covenants of the Company. The 4.1 Access and Investigation (a) During the period commencing on the Agreement Date and continuing until the earlier of the termination of this Agreement pursuant to Section 8 and the Closing (the “Pre-Closing Period”), the Company hereby agrees:shall, and shall cause the other Acquired Companies and the Acquired Companies’ respective Affiliates and Representatives to: (i) promptly upon request, provide Purchaser and Purchaser’s Representatives with reasonable access during normal business hours to the Company’s Representatives, personnel and assets and to all books, records, Tax Returns, work papers and other documents and information relating to the Acquired Companies; and (ii) promptly upon request, provide Purchaser and Purchaser’s Representatives with copies of such books, records, Tax Returns, Confidential Information has been omitted from this page and replaced by the asterisks appearing on this page. Such Confidential Information has been filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to this omitted information under Rule 406 under the Securities Act of 1933, as amended, and Rule 24b-2 under the Securities Exchange Act of 1934, as amended. 35
(a) to furnish such information as During the Pre-Closing Period, Purchaser and its Representatives may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws make reasonable inquiries of such states or other jurisdictions as the Underwriters may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution Persons having significant business relationships with any of the Shares; providedAcquired Companies (including suppliers and customers), however, that and the Company shall not be required ensure that each Acquired Company and its Representatives reasonably facilitate (and reasonably cooperate with Purchaser in connection with) such inquiries, subject in each case to qualify as a foreign corporation Purchaser or subject itself to taxation in any such jurisdiction or consent Purchaser’s Representative (i) providing reasonable advance notice to the service Company of process under the laws of any such jurisdiction its intention to do so, and (except service of process with respect to the offering and sale ii) permitting a Representative of the Shares); and to promptly advise the Underwriters of the receipt Company designated by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale participate in any jurisdiction oral or the initiation or threatening of in-person inquiries and to be copied on any proceeding for such purpose;written inquiries and correspondence related thereto.
(b) The Company shall deliver to make available to the Underwriters in New York CityPurchaser, as soon as practicable after the date of this Agreement, and thereafter from time to time to furnish to the Underwriters, 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 date of this Agreement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish to its stockholders as soon as practicable 45 days after the end of each fiscal year an annual report monthly accounting period that ends during the Pre-Closing Period, unaudited consolidated financial statements of the Acquired Companies (including consisting of a consolidated balance sheet and statements statement of financial position, a consolidated income statement, a consolidated statement of other comprehensive income, stockholders’ a consolidated statement of changes in equity and a consolidated statement of cash flow flows) as of the Company end of and the Subsidiaries for such fiscal yearmonthly accounting period, accompanied prepared in accordance with IFRS consistently applied throughout the periods covered and in accordance with the Company’s historic past practice (the “Pre-Closing Financial Statements”).
(c) The Confidentiality Agreement shall remain in full force and effect in accordance with its terms until the Closing, except that the obligations of Purchaser and its Affiliates and their respective Representatives under the first sentence of Section 2 thereof shall terminate upon the execution and delivery of this Agreement.
(d) During the Pre-Closing Period, the Company shall: (i) provide reasonable advance notice to Purchaser of any meeting or proceeding of the Company’s board of directors or any committee thereof, including any action to be taken by written consent; (ii) provide Purchaser with a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h) agenda for each such meeting and any resolutions proposed to furnish to the Underwriters one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated adopted by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose Company’s board of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock directors or any other securities committee thereof concurrently with the distribution of the Company that are substantially similar to Common Stock, (ii) file such agenda or cause to be declared effective a registration statement under the Act relating resolutions to the offer and sale Company’s board of any shares of Common Stock directors or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, such committee; (iii) enter into promptly (and in any swap or other arrangement that transfers to anotherevent no later than 24 hours) after each such meeting, in whole or in partnotify Purchaser of all decisions and determinations made, any and all actions taken, at such meeting by the Company’s board of the economic consequences of ownership of Common Stock directors or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or committee thereof; and (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration provide Purchaser with a copy of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances minutes of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation each meeting of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale ’s board of the Shares in the manner described in the Prospectus under “Use of Proceeds”.directors or any committee thereof promptly after such minutes are approved. 36
Appears in 1 contract
Samples: Share Issuance and Acquisition Agreement (Walmart Inc.)
Certain Covenants of the Company. The Company hereby agreesagrees as follows:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as the Representatives may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representatives promptly and, if requested by the UnderwritersRepresentatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide notify the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by Representatives promptly upon an event that causes the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filinglonger qualify as an EGC;
(fe) to advise the Underwriters promptly of the happening of if, at any event known to the Company within time during the period during which when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in Registration Statement shall cease to comply with the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light requirements of the circumstances under which they are made, not misleading, and, during such time, subject Act with respect to Section 4(d) hereof, to prepare and furnish, at eligibility for the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow use of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h) to furnish to the Underwriters one copy of form on which the Registration Statement, as initially Statement was filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within promptly notify the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.Representatives,
Appears in 1 contract
Samples: Underwriting Agreement (Warrior Technologies Acquisition Co)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect for so long as you may be required reasonably request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify you promptly upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall have reasonably object objected in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to furnish make generally available (within the meaning of Rule 158 under the Act) to the Underwriters one copy of the Registration Statementits security holders, as initially filed with and, if not available on the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its ’s Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for system (“XXXXX”), to deliver to you, an earnings statement of the purposes Company (which will satisfy the provisions of this Section 4(i)11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) [Reserved];
(j) if requested by you, to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any materials pursuant to this clause if such materials are available via XXXXX;
(k) 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;
(l) 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, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements, and any closing documents (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), (iv) the qualification of the Shares for a period offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law (including the reasonable and documented legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on Nasdaq and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by FINRA, including the reasonable and documented legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters in an amount not to exceed $15,000, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, 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 costs of all Exempt Oral Communications and Covered Exempt Written Communications, and (ix) the performance of the Company’s other obligations hereunder;
(m) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(n) beginning on the date hereof and ending on, and including, the date that is 90 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the your prior written consent of the Representativesconsent, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) the issuance of the Shares as contemplated by this Agreement, (C) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, and (CD) the issuance of equity-based awards under the Company’s equity incentive plan described in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus, except for employee stock options not that are exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(ko) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no provide you with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, and to issue no such press release or communications or hold such press conference without the Underwriters’ your prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(nr) to use its reasonable best efforts either (i) to maintain the listing of cause the Shares to be listed for quotation on the NYSE, (ii) to list, Nasdaq and to maintain the such listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;Nasdaq; and
(os) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Samples: Underwriting Agreement (Concrete Pumping Holdings, Inc.)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the 1933 Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the 1933 Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the 1933 Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act or Item 512(a) of Regulation S-K under the 1933 Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the 1933 Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act 1933 Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the 1933 Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; 1933 Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) if the third anniversary of the initial effective date of the Registration Statement (within the meaning of Rule 415(a)(5) under the 0000 Xxx) shall occur at any time during the period when a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, to (i) file with the Commission, prior to such third anniversary, a new registration statement under the 1933 Act relating to the Shares, which new registration statement shall comply with the requirements of the 1933 Act (including, without limitation, Rule 415(a)(6) under the 0000 Xxx) and shall be in a form satisfactory to you; and (ii) use its best efforts to cause such new registration statement to become effective under the 1933 Act as soon as practicable, but in any event within 180 days after such third anniversary and promptly notify you of such effectiveness; the Company shall take all other action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement, if any;
(e) for so long as a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Pre-Pricing Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Pre-Pricing Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d4(g) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares; and, during such periodfor so long as a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall have reasonably object objected in writing; and to promptly notify the Underwriters of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the 1933 Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the 1933 Act, and, in each case, during such time, subject to Section 4(d4(g) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(gh) to make generally available to its security holders, and, if not available on XXXXX, to deliver to you, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the 1933 Act and the rules and regulations of the Commission thereunder as soon as is reasonably practicable but in any event not later than twelve months after the effective date of the Registration Statement (as defined in Rule 158(c) under the 1933 Act);
(i) [Reserved];
(j) if requested by you, to furnish to its stockholders you as soon early as practicable after prior to the end time of each fiscal year an annual report (including purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated balance sheet and statements of incomefinancial statements, stockholders’ equity and cash flow if any, of the Company and the Subsidiaries for which have been reviewed by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(c) hereof, provided, however, that the Company shall not be required to furnish any materials pursuant to this clause if such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)materials are available via XXXXX;
(hk) to furnish apply the net proceeds from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the Underwriters one copy preparation and filing of the Registration Statement, as initially filed with each Basic Prospectus, each Pre-Pricing Prospectus, the CommissionProspectus Supplement, the Prospectus, each Permitted Free Writing Prospectus, if any, and of all any amendments or supplements thereto, including, if requested, all exhibits thereto;
(i) to furnish and the printing and furnishing of copies of each thereof to the Underwriters promptly for a period and to dealers (including costs of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholdersmailing and shipment), (ii) copies the registration, issue, sale and delivery of all annualthe Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, quarterly and current reports filed with issuance or furnished delivery of the Shares to the Commission on Forms 20-F or 6-KUnderwriters, or such other similar forms as may be designated by the Commission and (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of documents each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state or reports filed with foreign laws and the determination of their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any national blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on which the NYSE and any class registration thereof under the Exchange Act, (vi) any filing for review of securities the public offering of the Shares by FINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company is listed; providedrelating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, howeverincluding, that without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any information or documents filed consultants engaged in connection with or furnished to the Commission pursuant to its Electronic Data Gatheringroad show presentations, Analysis travel, lodging and Retrieval System shall be considered furnished 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, (ix) the costs and expenses of qualifying the Shares for inclusion in the purposes book-entry settlement system of this Section 4(i)the DTC and (x) the performance of the Company’s other obligations hereunder;
(jm) for a period of 90 to comply with Rule 433(d) under the 1933 Act (without reliance on Rule 164(b) under the 0000 Xxx) and with Rule 433(g) under the 1933 Act;
(n) beginning on the date hereof and ending on, and including, the date that is 60 days after the date hereof of the Prospectus Supplement (the “Lock-Up Period”), without the prior written consent of the Representatives, Company will not to (i) offer, pledge, sell, offer contract to sell, sell any option or contract to purchase, purchase any option or agree contract to sell, hypothecate, pledge, grant any option option, right or warrant to purchase purchase, or otherwise dispose of transfer or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within file with the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective Commission a registration statement under the 1933 Act relating to the offer and sale of to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities shares of the Company that are substantially similar to Common Stock, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or (iiiii) enter into any swap swap, hedging or other arrangement agreement that transfers to anothertransfers, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase the Common Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i)otherwise, (ii) or (iii)without the prior written consent of the Representatives, except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the each Pre-Pricing Prospectus and the Prospectus, and (C) the issuance vesting of or removal or lapse of restrictions on restricted stock or other awards under any employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described benefit plan or agreement disclosed in the Registration StatementStatement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus and (D) the filing of any registration statement in respect of securities offered pursuant to the terms of any existing employee benefit plan or agreement disclosed in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus; provided, however, that if (a) during in each case without the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day prior written consent of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursRepresentatives;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(mo) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(np) to use its reasonable best efforts either (i) to cause the Common Stock, including the Shares, to be listed on the NYSE and to maintain the listing of the Shares Common Stock, including the Shares, on the NYSE, ; and
(iiq) for so long as the Company is subject to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to reporting requirements of Section 6(a13(g) or 15(d) of the 1934 Act or (iii) to arrange for the quotationExchange Act, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representative may reasonably designate and to maintain such qualifications in effect so long as the Representative may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this Agreementagreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representative promptly and, if requested by the UnderwritersRepresentative, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, promptly and, if requested by the UnderwritersRepresentative, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of of, a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representative promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their Underwriters' counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representative shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the UnderwritersRepresentative, for their its review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters Representative of such filing;
(f) to advise the Underwriters Representative promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Representative promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s 's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(g) to furnish make generally available to its stockholders security holders, and to deliver to the Representative, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year an annual report (including a consolidated balance sheet and statements of incomesuch twelve-month period but in any case not later than August 15, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)2008;
(h) to furnish to the Underwriters one copy Representative copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to the Underwriters promptly for Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand its subsidiaries which have been read by the Company's independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)9(f) hereof;
(j) to apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption "Use of proceeds" in the Prospectus and to file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Act; to not use, and to cause the CECT Entities not to use, the proceeds from the sale of any Shares, directly or indirectly, for a period any purpose or activity that would cause the Underwriters or any purchaser of 90 the Shares, by virtue of their purchasing or holding any Shares, to be in violation of the Trading With the Enemy Act, as amended, the International Emergency Economic Powers Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, or in connection with business, operations or contracts with the governmental authority or with any person or entity of Cuba, Iran, North Korea, Syria or Myanmar or any person or entity that is subject to sanctions under any program administered by OFAC;
(k) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(l) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “"Lock-Up Period”"), without the prior written consent of the RepresentativesRepresentative, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Ordinary Shares, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Ordinary Shares or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreementagreement, (B) issuances of Common Stock Ordinary Shares upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, and (C) the issuance granting of employee stock share options not exercisable during the Lock-Up Period pursuant to stock option share incentive plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the ProspectusProspectus and (D) issuances of Ordinary Shares or any other securities in connection with any acquisition that has been approved by the Representative; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(l) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(km) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCECT Entity, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary CECT Entity, or the offering of the Shares, without the Underwriters’ Representative's prior consentconsent (such consent not to be unreasonably withheld by the Representative);
(ln) not, at any time at upon or after the execution of this Agreementagreement, to to, directly or indirectly, offer or sell any Shares by means of any “"prospectus” " (within the meaning of the Act) ), or use any “"prospectus” " (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mo) not to, and to cause its Subsidiaries the CECT Entities not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(np) to use its reasonable best efforts either (i) to cause the Shares to be listed on the NYSE and to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common StockShares;
(r) to indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Shares and on the execution, delivery and performance of this agreement; to make all payments to be made by the Company hereunder without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges, in which event, to pay such additional amounts as may be necessary in order 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;
(s) upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company's trademarks, trade names, service marks and corporate logo for use on the website, if any, operated by such Underwriter solely for the purpose of facilitating the on-line offering of the Shares (the "License"); provided, however, that the License is granted without any fee and may not be assigned or transferred to any person other than affiliates of such Underwriter; and
(pt) to apply comply with the net proceeds received by it from Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause the sale of Company's directors and officers, in their capacities as such, to comply with the Shares in the manner described in the Prospectus under “Use of Proceeds”Xxxxxxxx-Xxxxx Act.
Appears in 1 contract
Samples: Underwriting Agreement (Qiao Xing Mobile Communication Co., Ltd.)
Certain Covenants of the Company. The Company hereby agrees:
(a) before amending or supplementing the Registration Statement or the Prospectus, or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Act, to furnish to the Underwriters a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(b) to make no post-effective amendment or supplement to the Registration Statement or the Prospectus which shall have been disapproved by the Underwriters by notice in writing to the Company after notice thereof and reasonable opportunity to review and comment thereon;
(c) to prepare a Prospectus Supplement with respect to any Shares sold by the Company pursuant to this Agreement, in a form previously approved by the Underwriters, and to file such Prospectus Supplement pursuant to Rule 424(b) under the Act not later than 5:00 p.m. on the second business day after the signing of this Agreement, and to provide copies of such Prospectus Supplement to the Underwriters via e-mail in ".pdf" format on such filing date to an e-mail account designated by the Underwriters;
(d) to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act for so long as the delivery of a Prospectus is required in connection with the offering or sale of the Shares, and during such same period to advise the Underwriters, promptly after the Company receives notice thereof, of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, or the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Shares, or the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amendment or supplementation of the Registration Statement or Prospectus or for additional information; and
(e) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(f) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation corporation, become a dealer of securities, or become subject itself to taxation in any such jurisdiction in, or to consent to the service of process under the laws of any such jurisdiction state (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening in writing of any proceeding for such purpose;
(bg) to make available to the Underwriters in New York CityUnderwriters, as soon as practicable after the date of this AgreementRegistration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; and for so long as this Agreement is in effect, or in any case the Underwriters are if any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after within the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, prepare and file promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance comply with the requirements of Section 10(a)(3) of the Act;
(ch) if, at the time this Agreement is executed to advise you promptly and delivered, it is necessary for (if requested by you) to confirm such advice in writing (i) when any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and agrees to file no in a timely manner under such amendment or supplement to which the Underwriters shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting BoardRules);
(h) to furnish to the Underwriters one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly you for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, reports or other communications which the Company shall send to its stockholdersstockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 2010-F or 6K, 10-Q and 8-K, or such other similar forms form as may be designated by the Commission Commission, and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished and to furnish to you from time to time during the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes term of this Section 4(i)Agreement such other information as you may reasonably request regarding the Company or the Subsidiaries, in each case as soon as such reports, communications, documents or information becomes available;
(j) for a period of 90 days after if at any time, beginning on the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase this Agreement and continuing for so long as a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act Prospectus relating to the offer and sale Shares is required to be delivered under the Act, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights material fact necessary in order to purchase Common Stock or any other securities make the statements therein not misleading in light of the Company that are substantially similar circumstances existing at the time the Prospectus is delivered to Common Stocka purchaser, (iii) enter into any swap or other arrangement that transfers to anotherif it shall be necessary, in whole the reasonable opinion of either such counsel, to amend or supplement the Registration Statement or the Prospectus in part, any order to comply with the requirements of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common StockAct, or warrants or other rights to purchase Common Stock or any such securitiesimmediate notice shall be given, whether any such transaction is to be settled by delivery of Common Stock or such other securitiesand confirmed in writing, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters to cease sales of any Shares the Underwriters, and the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the stabilization or manipulation Registration Statement and Prospectus comply with such requirements;
(k) to generally make available to its security holders as soon as practicable, but not later than 90 days after the close of the price period covered thereby, an earnings statement (in form complying with the provisions of any security Section 11(a) under the Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement with respect to each sale of Shares;
(l) to furnish to you four signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including all exhibits thereto and all documents incorporated by reference therein;
(m) to furnish to you as early as practicable prior to the time of purchase a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and its Subsidiaries which have been read by the Company's independent certified public accountants, as stated in their letter to facilitate the sale or resale of the Sharesbe furnished pursuant to Section 6(d) hereof;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in set forth under the Prospectus under “caption "Use of Proceeds”" in the Prospectus;
(o) 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 any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares, (iii) the producing, word processing and/or 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 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 law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters, (v) the listing of the Shares on the Nasdaq National Market System (the "Exchange") and any registration thereof under the 1934 Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the fees and disbursements of counsel to the Underwriters in connection therewith, (vii) all other fees and disbursements of counsel to the Company and counsel to the Underwriters, up to a maximum of $40,000, and (viii) the performance of the Company's other obligations hereunder; provided that the Underwriters shall be responsible for any transfer taxes on resale of Shares by them;
(p) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (d) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the 1934 Act;
(q) to use its reasonable best efforts to cause the Shares to be listed on the Exchange; and
(r) to use its best efforts to satisfy, or cause to be satisfied, the conditions set forth below in Section 6 on or in respect of the time of purchase hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Aphton Corp)
Certain Covenants of the Company. The Company and MIT hereby agreesjointly and severally agree:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as you may designate as of the Underwriters may reasonably designate date of this Agreement and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementRegistration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, possible and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required agrees to file in a timely manner under Rule 424(bsuch Rule), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall object reasonably object in writingwriting providing an explanation including any legal justification;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of the Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) which in connection with any sale the judgment of Sharesthe Company, which event after receiving advice from outside securities law counsel of national reputation, could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s and MIT’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(gh) to make generally available to its security holders, and to deliver to you (but expressly not your analysts covering the Company or REITs generally), an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(i) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Boardaccountants);
(hj) to furnish to the Underwriters one copy you three copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(ik) to furnish to you promptly and, upon written request, to each of the other Underwriters promptly for a period of three five years from the date of this Agreement (i) copies of any reports, proxy statements, reports or other communications which the Company shall send has sent to its stockholdersstockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 2010-F or 6K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission and Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any and (iv) such other information as you may reasonably request regarding the Company or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)Subsidiaries;
(jl) for a period of 90 days after to furnish to you (but expressly not your analysts covering the date hereof (the “Lock-Up Period”Company or REITs generally), without as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior written consent thereto, a copy of the Representativeslatest available unaudited interim and monthly consolidated financial statements, not if any, of the Company and the Subsidiaries which have been read by the Company’s independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof;
(m) 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;
(n) 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 any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, 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 Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) the listing of the Shares on the New York Stock Exchange, Inc. and the registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company and MIT relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, 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 MIT and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the offer and sale of the Reserved Shares, including all costs and expenses of UBS-FinSvc and the Underwriters, including the fees and disbursement of counsel for the Underwriters and (x) the performance of the Company’s other obligations hereunder;
(o) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common StockStock for a period of 180 days after the date hereof (the “Lock-Up Period”), (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any without the prior written consent of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable Representatives, except for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (Bii) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus Statement and the Prospectus, and (Ciii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus Statement and the Prospectus; provided, however, that if and (aiv) during the period that begins registration on Form S-8 of shares of Common Stock issuable under the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock2004 Long-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;Term Incentive Plan. [Discuss DRIP]
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(np) to use its reasonable best efforts either (i) to maintain cause the listing of the Shares Common Stock to be listed on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;New York Stock Exchange; and
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or a dealer, to subject itself to taxation in any such jurisdiction or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) The Company will promptly notify UBS and Deutsche Bank if the Company ceases to be an Emerging Growth Company at any time prior to the later of
(i) completion of the distribution of the Shares within the meaning of the Securities Act and (ii) completion of the 180-day restricted period referred to in Section 5(m).
(e) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d5(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall have reasonably object objected in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require requires the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available to its security holders, and to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than 18 months following the effective date of the Registration Statement (as defined in Rule 158(c) under the Act);
(i) to furnish to the Underwriters you one copy for each of UBS, Deutsche Bank and Barclays Capital Inc. and one copy for underwriters’ counsel, copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) for to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of 90 the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiary which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 9(d) hereof (it being understood and agreed that the Company’s obligations under this paragraph will be deemed satisfied if such unaudited interim consolidated financial statements are included within a Company filing with the Commission);
(k) to apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesUBS and Deutsche Bank, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing (other than any registration statement on Form S-8 filed to register securities issuable upon the exercise of options granted by the Company in connection with the Company’s existing equity incentive plans disclosed in the Registration Statement, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants warrants, or the conversion of debt securities or preferred stock, disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), provided the Pricing Prospectus and recipient thereof agrees in writing with the ProspectusUnderwriters to be bound by the terms of the Lock-Up Agreement, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration StatementStatement (excluding the exhibits thereto) and (D) the issuance by the Company of shares of Common Stock in connection with a joint venture with Wanxiang Group, J3M Empreendimentos e Participacoes Ltda., an entity located in Colombia with which the Pricing Prospectus Company has engaged in discussions regarding a potential joint venture prior to the date hereof, or any of their respective affiliates, so long as the aggregate price of the shares of Common Stock issued pursuant to this clause (D) shall not exceed $25,000,000, in each case at a price per share of not less than the greater of (i) [IPO PUBLIC OFFERING PRICE], and (ii) the Prospectusmarket price prevailing at the time of such sale, and further provided that the recipient of such shares agrees in writing with UBS and Deutsche Bank to be bound by the terms of the Lock-Up Agreement attached as Exhibit A hereto; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(m) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kn) if UBS and Deutsche Bank in their sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 3(w) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver prior to 12:00 p.m., Kansas City time, on the second Business Day before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit A-2 hereto through a major news service at least two Business Days before the effective date of the release or waiver;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any the Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary the Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries the Subsidiary not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(nr) to use its reasonable best efforts either (i) to cause the Common Stock, including the Shares, to be listed, and use its commercially reasonable efforts to maintain the listing of the Shares such listing, on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 ActNASDAQ;
(os) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(pt) to apply cause the net proceeds received by it from Subsidiary to file its audited accounts for its fiscal year 2011 with the sale appropriate U.K. authorities promptly following the time of the Shares in the manner described in the Prospectus under “Use of Proceeds”sale.
Appears in 1 contract
Samples: Underwriting Agreement (Smith Electric Vehicles Corp.)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares Offered ADSs for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the SharesOffered ADSs; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesOffered ADSs); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Offered ADSs for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Offered ADSs, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Offered ADSs may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the 8-A Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement or the 8-A Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesOffered ADSs; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object have objected in writing; and to promptly notify the Underwriters you of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesOffered ADSs, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(g) to furnish make generally available to its stockholders security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year an annual report (including a consolidated balance sheet and statements of incomesuch twelve-month period but in any case not later than [—], stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)2011;
(h) to furnish to the Underwriters one copy you three copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to you as early as practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand the Group Entities which have been read by the Company’s independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)9(g) hereof;
(j) for a period to apply the net proceeds to the Company from the sale of 90 the Offered ADSs in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Offered ADSs and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(k) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(l) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Common StockOrdinary Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Ordinary Shares or any other securities of the Company that are substantially similar to Ordinary Shares, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Ordinary Shares or such other securities, in cash or otherwise otherwise, (iv) effect any transfer of securities of the Company (other than transfers to affiliates (as defined in Rule 405 under the Act) or (ivv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or ), (iii), or (iv) except, in each case, for (A) the registration of the Shares offer and sale of the sales to the Underwriters pursuant to Offered ADSs as contemplated by this Agreement, (B) issuances of Common Stock Ordinary Shares upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing Prospectus General Disclosure Package and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing Prospectus General Disclosure Package and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(l) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(km) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryGroup Entity, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Group Entity, or the offering of the SharesOffered ADSs, without the Underwriters’ your prior consent;
(ln) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Ordinary Shares or ADSs by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesOffered ADSs, in each case other than the Registration Statement and the then most recent Prospectus;
(mo) not to, and to cause its Subsidiaries the Group Entities not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesOffered ADSs;
(np) to use its reasonable best efforts either (i) to maintain cause the listing of the Shares Offered ADSs to be listed on the NYSE, (ii) to list, Nasdaq and to maintain the such listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 ActNasdaq;
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common StockOrdinary Shares;
(r) to indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered ADSs and on the execution, delivery and performance of this Agreement; to make all payments to be made by the Company hereunder without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges, in which event, to pay such additional amounts as may be necessary in order 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;
(s) upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, trade names, service marks and corporate logo for use on the website, if any, operated by such Underwriter solely for the purpose of facilitating the on-line offering of the Offered ADSs (the “License”); provided, however, that the License is granted without any fee and may not be assigned or transferred to any person other than affiliates of such Underwriter; and
(pt) to apply comply with the net proceeds received by it from Sxxxxxxx-Xxxxx Act, and to use its best efforts to cause the sale of Company’s directors and officers, in their capacities as such, to comply with the Shares in the manner described in the Prospectus under “Use of Proceeds”Sxxxxxxx-Xxxxx Act.
Appears in 1 contract
Certain Covenants of the Company. The In further considera- tion of the agreements of the Underwriters herein contained, the Company hereby agreescovenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission; as soon as the Company is advised thereof, to advise the Represen- tative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement or Prospectus or for additional information with respect thereto or of the entry of a stop order suspending the effective- ness of the Registration Statement or of the initi- ation or threat of any proceedings for that purpose and, if such a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supple- ments or amendments thereto, other than supplements or amendments relating solely to securities other than the Debentures) as the Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expira- tion of nine months after the date hereof, to fur- nish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement in the form filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amend- ments relating solely to securities other than the Debentures and, upon request, to furnish to the Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such information period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circum- stances when the Prospectus is delivered to a pur- chaser, not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses are fur- nished to the Company by the Representative) to whom principal amounts of the Debentures may be required have been sold by the Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amend- ments to the Prospectus or supplements to the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and otherwise to cooperate in qualifying the Shares Underwriters an earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Debentures for offering offer and sale under the securities or "blue sky sky" laws of such states or other jurisdictions as the Representa- tive may designate within six months after the date hereof and itself to pay, or to reimburse the Underwriters may reasonably designate and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to maintain such qualifications in effect so long as may be required for the distribution of the Shares; effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or file a consent to the service of process under the laws of or to file annual reports or to comply with any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters of the receipt other require- ments deemed by the Company of any notification with respect to the suspension be unduly burden- some.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the qualification Debentures by the respective Underwriters) in connection with the issuance and delivery of the Shares for offer or sale Debentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
paragraph (bf) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementSection 4) of Dewey Ballantine, and thereafter from time to time to furnish counsel to the Underwriters, as many copies only xx xxx events provided in paragraph (h) of this Section 4, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Debentures due to the failure of the Prospectus (or Company to comply with any of the Prospectus as amended conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 7 or supplemented if 8 hereof, to pay the fees and dis- bursements of Dewey Ballantine, counsel to the Underwritxxx, xxx, xx xxx Underwriters shall not take up and pay for the Debentures due to the failure of the Company shall have made to comply with any amendments or supplements thereto of the conditions specified in Section 3 hereof, to reim- burse the Underwriters for their reaxxxxxxx xxx-xx- pocket expenses, in an aggregate amount not exceed- ing a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continu- ing to and including the earlier of (i) the date which is after the date Time of this Agreement) Purchase on which the distribution of the Debentures ceases, as the Underwriters may request for the purposes contemplated deter- mined by the Act; Representative in case its sole discretion, and (ii) the Underwriters are required date which is 30 days after the Time of Purchase, the Company agrees not to deliver offer, sell, contract to sell or otherwise dispose of any junior subordinated deferrable interest debentures of the Company or any substantially similar securities of the Company without the consent of the Representa- tive.]
(whether physically or through compliance with j) The Company will use its best efforts to list, sub- ject to notice of issuance, the Debentures on the New York Stock Exchange.]
(k) The Company will timely file any certificate re- quired by Rule 172 52 under the Public Utility Holding Company Act or any similar rule) of 1935 in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h) to furnish to the Underwriters one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i);
(j) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”Debentures.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky “Blue Sky” laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect for so long as you may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters you of the receipt by any of the Company Copano Entities of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time-to-time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will to use its their reasonable best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary the Pre-Pricing Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its their reasonable best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary the Pre-Pricing Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object have objected in writing; and to promptly notify the Underwriters you of such filing;
(f) if necessary or appropriate, to file a Registration Statement pursuant to, and in accordance with, Rule 462(b) under the Act and pay the applicable fees in accordance with the Act;
(g) to pay the fees applicable to the Registration Statement in connection with the offering of the Units within the time required by Rule 456 under the Act (without reliance on subsection (b)(1)(i) thereof) and in compliance with Rule 456(b) and Rule 457(r) under the Act;
(h) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d4(c) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(gi) to make generally available to the Company’s security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than (i) February 29, 2008, if the Company qualifies as a “large accelerated filer,” or (ii) March 17, 2008, if the Company qualifies as an “accelerated filer,” as such terms are defined in Rule 12b-2 under the Exchange Act;
(j) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report you three (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(h3) to furnish to the Underwriters one copy copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits theretothereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(ik) to furnish to you as early as practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company and its subsidiaries which have been read by the Company’s independent registered public accounting firm, as stated in their letter to be furnished pursuant to Section 6(c) hereof;
(l) to apply the net proceeds from the date sale of this Agreement the Units in the manner set forth under the caption “Use of Proceeds” in the Prospectus Supplement;
(m) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, the Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of any reports, proxy statements, or other communications which each thereof to the Company shall send Underwriters and to its stockholdersdealers (including costs of mailing and shipment), (ii) copies the registration, issue, sale and delivery of all annualthe Units including any transfer taxes and stamp or similar duties payable upon the sale, quarterly and current reports filed with issuance or furnished delivery of the Units to the Commission on Forms 20-F or 6-KUnderwriters, or such other similar forms as may be designated by the Commission and (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of documents each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state or reports filed with foreign laws and the determination of their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any national “Blue Sky” surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange on which including without limitation the Nasdaq Stock Market LLC and any class registration thereof under the Exchange Act, (vi) any filing for review of securities the public offering of the Units by the National Association of Securities Dealers, Inc. (the “NASD”), including the filing fees relating to NASD matters, (vii) the fees and disbursements of any transfer agent or registrar for the Units, (viii) the costs and expenses of the Company is listed; providedrelating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, howeverincluding, that without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any information or documents filed consultants engaged in connection with or furnished to the Commission pursuant to its Electronic Data Gatheringroad show presentations, Analysis travel, lodging and Retrieval System shall be considered furnished for other expenses incurred by the purposes officers of this Section 4(i)the Company and any such consultants, 50% of the cost of any aircraft chartered in connection with the road show, and (ix) the performance of the Company’s other obligations hereunder;
(jn) for a period of to comply with Rule 433(g) under the Act;
(o) beginning on the date hereof and ending on, and including, the date that is 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock Units or securities convertible into or exchangeable or exercisable for Common Stock Units, including without limitation the Subordinated Units, or warrants or other rights to purchase Common Stock Units or any other securities of the Company that are substantially similar to Common StockUnits, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock Units or securities convertible into or exercisable or exchangeable for Common Stock Units, including without limitation the Subordinated Units, or warrants or other rights to purchase Common Stock Units or any other securities of the Company that are substantially similar to Common StockUnits, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any securities convertible into or exercisable or exchangeable for Common Stock, including without limitation the Subordinated Units, or warrants or other rights to purchase Common Stock Units or any such securities, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares offer and sale of the sales to the Underwriters pursuant to Units as contemplated by this Agreement, (B) the issuance of Common Units in connection with the conversion of the Subordinated Units (the “Subordinated Unit Conversion”), (C) the registration of Common Units issued in connection with the Subordinated Unit Conversion, (D) pledges existing on November 30, 2006, (E) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding Units pursuant to employee benefits plans, qualified unit option plans and other employee compensation plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pre-Pricing Prospectus and the Prospectus, (F) issuances of Common Units upon the exercise of employee unit options issued pursuant to unit option plans described in the Registration Statement (excluding the exhibits thereto), the Pre-Pricing Prospectus and the Prospectus, provided that such options were outstanding as of the date hereof, and (CG) the issuance issuances of employee stock unit options not exercisable during the Lock-Up Period pursuant to stock unit option plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pre-Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j4(o) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(lp) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesUnits, in each case other than the Registration Statement Prospectus and the then most recent any Permitted Free Writing Prospectus;
(mq) not to, and to cause its Subsidiaries the Copano Entities not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesUnits;
(nr) to use its their reasonable best efforts either (i) to maintain cause the listing of the Shares Units to be listed on the NYSE, (ii) to list, Nasdaq Stock Market LLC and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;such listing; and
(os) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”Units.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect for so long as you may be required reasonably request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify you promptly upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall have reasonably object objected in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to furnish make generally available (within the meaning of Rule 158 under the Act) to the Underwriters one copy of the Registration Statementits security holders, as initially filed with and, if not available on the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its ’s Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for system (“XXXXX”), to deliver to you, an earnings statement of the purposes Company (which will satisfy the provisions of this Section 4(i)11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) [Reserved];
(j) if requested by you, to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any materials pursuant to this clause if such materials are available via XXXXX;
(k) 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;
(l) 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, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements, and any closing documents (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), (iv) the qualification of the Shares for a period offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law (including the reasonable and documented legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on Nasdaq and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by FINRA, including the reasonable and documented legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters in an amount not to exceed $15,000, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, 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 costs of all Exempt Oral Communications and Covered Exempt Written Communications, and (ix) the performance of the Company’s other obligations hereunder;
(m) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(n) beginning on the date hereof and ending on, and including, the date that is 90 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the your prior written consent of the Representativesconsent, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) the issuance of the Shares as contemplated by this Agreement, (C) issuances of Common Stock upon the conversion of preferred stock or exercise of options or warrants warrants, in each case disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, and (CD) the issuance of equity-based awards under the Company’s equity incentive plan described in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus, except for employee stock options not that are exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(ko) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no provide you with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, and to issue no such press release or communications or hold such press conference without the Underwriters’ your prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(nr) to use its reasonable best efforts either (i) to maintain the listing of cause the Shares to be listed for quotation on the NYSE, (ii) to list, Nasdaq and to maintain the such listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;Nasdaq; and
(os) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Samples: Underwriting Agreement (Concrete Pumping Holdings, Inc.)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Public Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representative may reasonably designate and to maintain such qualifications in effect so long as the Representative may be required request for the distribution of the SharesPublic Units; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesPublic Units); and to promptly advise the Underwriters Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Public Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Public Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Public Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representative promptly and, if requested by the UnderwritersRepresentative, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representative immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters Representative promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representative promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representative and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representative shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesPublic Units; and, during such period, and to provide the UnderwritersRepresentative, for their the Representative’s review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representative shall reasonably object have objected in writing; and to promptly notify the Underwriters Representative of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesPublic Units, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“EXXXX”), to deliver to the Representative, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) to furnish to the Underwriters one copy Representative two (2) copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters;
(ij) if requested by the Representative, to furnish to the Underwriters promptly for Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(c) hereof, provided, however, that the Company shall not be required to furnish any information or documents filed with or furnished to the Commission materials pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)clause if such materials are available via EXXXX;
(jk) to apply the net proceeds from the sale of the Public Units in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Public Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus or the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Public Units including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Public Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (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), (iv) the qualification of the Public Units for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Public Units on any securities exchange or qualification of the Public Units for quotation on the NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Public Units by FINRA, including the legal fees (not to exceed $30,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Public Units, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Public Units to prospective investors and to the Underwriters’ sales forces, including, without limitation, the Company’s 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 costs of all TTW Oral Communications and Covered Exempt Written Communications, (ix) the costs and expenses of qualifying the Public Units for inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (xi) the performance of the Company’s other obligations hereunder;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesCxxxx, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any other securities of the Company that are substantially similar to the Units, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for that the Company may (Aa) issue and sell the registration Private Placement Units, (b) issue and sell the Additional Units on exercise of the Shares option provided for in Section 1 hereof, (c) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the Founder Shares, the Private Shares, and the sales to Warrants and Ordinary Shares issuable upon conversion of the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon Rights and the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the ProspectusWarrants, and (Cd) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described issue securities in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or connection with a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursBusiness Combination;
(kn) at least one business day prior to the time of purchase, if the Sponsor shall have caused the purchase price for the Private Placement Units to issue no be wired to the Company, the Company shall direct the trustee under the Trust Agreement to deposit such funds into the Trust Account and to hold such funds in escrow therein;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to provide the Representative with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCompany, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Company, or the offering of the SharesPublic Units, and to issue no such press release or communications or hold such press conference without the Underwriters’ Representative’s prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares Public Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesPublic Units, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesPublic Units;
(nr) to use its reasonable best efforts either (i) to cause the Public Units, including the Ordinary Shares, the Public Rights and the Public Warrants, to be listed for quotation on the NASDAQ and to maintain the listing of the Shares Public Units, including the Ordinary Shares, the Public Rights and the Public Warrants, for quotation on the NYSENASDAQ;
(s) for a period commencing at the Effective Time and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, (ii) to list, and the Company will use its best efforts to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) registration of the 1934 Act or (iii) to arrange for Public Units, Ordinary Shares, Rights and Warrants under the quotationprovisions of the Exchange Act, except, in the case of the Rights and to maintain the quotation ofPublic Units, after the Shares in an automated interdealer quotation system completion of a national securities association registered pursuant to Section 15A(a) Business Combination; the Company will not deregister the Public Units, Ordinary Shares, Rights or Warrants under the Exchange Act (except, in the case of the 1934 Act;
(o) to maintain Rights and the Public Units, after the completion of a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.Business Combination)
Appears in 1 contract
Samples: Underwriting Agreement (Constellation Alpha Capital Corp.)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Underwriter may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters Underwriter of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters Underwriter in New York City, as soon as practicable after the date of this Agreement, and thereafter from time to time to furnish to the UnderwritersUnderwriter, 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 date of this Agreement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be filed with the Commission Commissions and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act as soon as possible, and the Company will advise the Underwriters Underwriter promptly and, if requested by the UnderwritersUnderwriter, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters Underwriter promptly, and, if requested by the UnderwritersUnderwriter, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Underwriter promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus and to provide the Underwriters Underwriter and their its counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Underwriter shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the UnderwritersUnderwriter, for their its review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Underwriter shall reasonably object in writing; and to promptly notify the Underwriters Underwriter of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s 's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to make generally available to its security holders, and to deliver to the Underwriter, an earnings statement of the Company and its Subsidiaries (which need not be audited but shall satisfy the provisions of Rule 158(a) under the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than December 31, 2007;
(h) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ ' equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board);
(hi) to furnish to the Underwriters Underwriter one copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(ij) to furnish to the Underwriters Underwriter promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i5(j);
(jk) for a period of 90 days after the date hereof (the “"Lock-Up Period”"), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters Underwriter pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(k) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kl) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ Underwriter's prior consent;
(lm) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “"prospectus” " (within the meaning of the Act) or use any “"prospectus” " (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(mn) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(no) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Exchange Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Exchange Act;.; and
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or corporation, to subject itself to taxation in any such foreign jurisdiction or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object have objected in writing; and to promptly notify the Underwriters you of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(g) to furnish make generally available to its stockholders security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year such twelve-month period but in any case not later than [insert due date of last 10-K or 10-Q that would qualify under Rule 158 as an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)earnings statement covering 12 months after effectiveness];
(h) to furnish to the Underwriters one copy each Managing Underwriter and underwriters’ counsel copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to you as early as practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand the Subsidiaries which have been read by the Company’s independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)9(c) hereof;
(j) for a period of 90 to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(k) to comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act;
(l) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the RepresentativesUBS, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, and (C) the issuance of employee stock options options, restricted stock, stock appreciation rights or other stock-based awards to employees or directors that are not exercisable during the Lock-Up Period pursuant to stock option or other stock incentive plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(l) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(km) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consent;
(ln) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mo) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(np) to use its reasonable best efforts either (i) to maintain cause the listing of Common Stock, including the Shares Shares, to be listed for quotation on the NYSE, (ii) to list, NASDAQ and to maintain such listing for quotation on the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;NASDAQ; and
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying qualify the Shares Securities for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the SharesSecurities; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesSecurities); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) at the Company’s expense, to make available to the Underwriters in New York City, as soon as practicable after this Agreement becomes effective and in any event not later than 12:00 noon on the business day next succeeding the date of this Agreement, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) and each Issuer Free Writing Prospectus (to the extent not previously delivered) as the Underwriters may request for the purposes contemplated by the Act; provided, however, that notwithstanding anything in this subsection (b) to the contrary, without relieving the Company of the obligation to so make available and furnish such copies, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(c) in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) deliver, in connection with the sale of the Shares Securities, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, as the case may be; provided, however, that, without relieving the Company of the obligation to so prepare such amendment or amendments, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(cd) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement thereto to be filed with the Commission and become declared effective before the Shares Securities may be sold, the Company will use its best reasonable commercial efforts to cause the Registration Statement or such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C 430 under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(de) to advise the Underwriters promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its reasonable best efforts to obtain the lifting or removal of such order as soon as possible; provided, however, that, without relieving the Company of the obligation to so advise, confirm and use its reasonable best efforts, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement; and for so long as the delivery of a prospectus is required in connection with the offering or sale of Securities to advise the Underwriters you promptly of any proposal to file any Issuer Free Writing Prospectus, or to amend or supplement the Registration Statement, any Preliminary Statement or the Prospectus, the Prospectus or including by filing any Issuer Free Writing Prospectus documents that would be incorporated therein by reference, and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of Sharesthe Securities; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filingperiod, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company (i) within the period time during which a prospectus relating to the Securities is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus Prospectus, or (ii) at any time prior to the time of purchase which would require the making of any change in the Time of Sale Information then being used so that the Time of Sale Information would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus or Time of Sale Information, as the case may be, as may be necessary to reflect any such change;
(g) ; provided, however, that, without relieving the Company of the obligation to so prepare and furnish such amendments or supplements, the Company shall not be required to its stockholders as soon as practicable pay the costs and expenses thereof after the end expiration of each fiscal year an annual report (including a consolidated balance sheet and statements nine months after the date of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)this Agreement;
(h) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act and which may be unaudited) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than 90 days after the close of the period covered thereby;
(i) to furnish to the Underwriters one copy you five copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(ithereto and documents incorporated by reference therein) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) for a period of 90 days after to apply the date hereof (net proceeds from the “Lock-Up Period”), without the prior written consent sale of the RepresentativesSecurities in the manner set forth under the caption “Use of Proceeds” in the Prospectus;
(k) to pay all costs, not to expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, each Pre-Pricing Prospectus, each Prospectus Supplement, each Issuer Free Writing Prospectus, any Time of Sale Information, the Prospectus and, except as otherwise provided in this Section 4, any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Securities including any taxes payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney, the Indenture and any closing documents (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), (iv) the qualification of the Securities for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any filing for review of the public offering of the Securities by the NASD, including the legal fees and filing fees and other disbursements of counsel to the Underwriters relating to NASD matters, (vi) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Securities to prospective investors and the Underwriters’ sales forces, 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, (vii) any fees charged by rating agencies for rating the Securities, (viii) the fees and expenses of the Trustee (including related fees and expenses of any counsel to the Trustee) and (ix) the performance of the Company’s other obligations hereunder;
(l) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any United States dollar-denominated debt securities issued 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 and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of guaranteed by the Company that are substantially similar to Common Stockand having a maturity of more than one year from the date of issue, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities such debt securities, without the prior written consent of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any Representative for a period beginning at the time of execution of this Agreement and ending at the later of the economic consequences time of ownership purchase or the lifting of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stocktrading restrictions by the Representative, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, but in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material no event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business later than 15 days after the date on which the issuance of this Agreement; and
(m) to use its best efforts to continue to qualify as a REIT under Sections 856 through 860 of the earnings release or Code, unless the material news or material event occurs;Company’s board of directors in good faith determines by resolution that it is in the best interests of the Company’s stockholders not to so qualify.
(kn) prior that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences Company with respect to the Company offering of the Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or any Subsidiary, the financial condition, results of operations, business, properties, assetsa fiduciary to, or liabilities of an agent of, the Company or any Subsidiary or the offering other person; that neither of the SharesRepresentatives, without nor any other Underwriter, is advising the Underwriters’ prior consent;
(l) notCompany or any other person as to any legal, at tax, investment, accounting or regulatory matters in any time at or after jurisdiction; that the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not totransactions contemplated hereby, and that the Underwriters shall have no responsibility or liability to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company with respect to facilitate such consultations, investigations or appraisals; and that any review by the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation Underwriters of the Company, a registrar the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the Common Stock; and
(p) to apply the net proceeds received by it from the sale benefit of the Shares in Underwriters and shall not be on behalf of the manner described in the Prospectus under “Use of Proceeds”Company.
Appears in 1 contract
Samples: Underwriting Agreement (Nationwide Health Properties Inc)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares Securities for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the SharesSecurities; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesSecurities); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) at the Company’s expense, to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; provided, however, that, without relieving the Company of the obligation to so make available and furnish such copies, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(c) in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) deliver, in connection with the sale of the Shares Securities, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Rule 415(a)(3) under the Act or Item 512(a) of Regulation S-K under the Act, as the case may be; provided, however, that, without relieving the Company of the obligation to so prepare such amendment or amendments, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement;
(cd) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement thereto to be filed with the Commission and become declared effective before the Shares Securities may be sold, the Company will use its best reasonable commercial efforts to cause the Registration Statement or such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(de) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its reasonable best efforts to obtain the lifting or removal of such order as soon as possible; provided, however, that, without relieving the Company of the obligation to so advise, confirm and use its reasonable best efforts, the Company shall not be required to pay the costs and expenses thereof after the expiration of nine months after the date of this Agreement; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Statement or the Prospectus, the Prospectus or including by filing any Issuer Free Writing Prospectus documents that would be incorporated therein by reference, and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of Sharesthe Securities; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filingperiod, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Securities is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) ; provided, however, that, without relieving the Company of the obligation to so prepare and furnish such amendments or supplements, the Company shall not be required to its stockholders as soon as practicable pay the costs and expenses thereof after the end expiration of each fiscal year an annual report (including a consolidated balance sheet and statements nine months after the date of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)this Agreement;
(h) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act and which may be unaudited) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than 90 days after the close of the period covered thereby;
(i) to furnish to the Underwriters one copy you five copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(ithereto and documents incorporated by reference therein) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) for a period of 90 days after to apply the date hereof (net proceeds from the “Lock-Up Period”), without the prior written consent sale of the RepresentativesSecurities in the manner set forth under the caption “Use of proceeds” in the Prospectus;
(k) to pay all costs, not to expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, each Pre-Pricing Prospectus, each Prospectus Supplement, the Prospectus and, except as otherwise provided in this Section 4, any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Securities including any taxes payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney, the Indenture and any closing documents (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), (iv) the qualification of the Securities for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any filing for review of the public offering of the Securities by the NASD, including the legal fees and filing fees and other disbursements of counsel to the Underwriters relating to NASD matters, (vi) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Securities to prospective investors and the Underwriters’ sales forces, 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, (vii) any fees charged by rating agencies for rating the Securities; (viii) the fees and expenses of the Trustee (including related fees and expenses of any counsel to the Trustee) and (ix) the performance of the Company’s other obligations hereunder;
(l) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any United States dollar-denominated debt securities issued 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 and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of guaranteed by the Company that are substantially similar to Common Stockand having a maturity of more than one year from the date of issue, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities such debt securities, without the prior written consent of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any Representative for a period beginning at the time of execution of this Agreement and ending at the later of the economic consequences Closing Date or the lifting of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stocktrading restrictions by the Representative, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, but in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material no event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business later than 15 days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;; and
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing continue to qualify as a REIT under Sections 856 through 860 of the Shares on Code, unless the NYSE, (ii) to list, and to maintain Company’s board of directors in good faith determines by resolution that it is in the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation best interests of the Company, a registrar for the Common Stock; and
(p) ’s stockholders not to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”so qualify.
Appears in 1 contract
Samples: Underwriting Agreement (Nationwide Health Properties Inc)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate with the underwriters in qualifying endeavoring to qualify the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate in writing and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) if, at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, the Registration Statement shall cease to comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a new registration statement under the Act, relating to the Shares, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to you, (iii) use its reasonable best efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action reasonably necessary or appropriate to permit the public offering and sale of the Shares 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;
(e) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Pre-Pricing Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its reasonable best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Pre-Pricing Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d5(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall have reasonably object objected in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than May 10, 2011;
(i) to furnish to the Underwriters you one copy for each Managing Underwriter and one copy for underwriters’ counsel copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto;
(ithereto and documents incorporated by reference therein) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) and sufficient copies of any reports, proxy statements, or the foregoing (other communications which the Company shall send than exhibits) for distribution of a copy to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities each of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)other Underwriters;
(j) for a period of to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(k) beginning on the date hereof and ending on, and including, the date that is 90 days after the date hereof of the Prospectus Supplement (the “Lock-Up Period”), without the prior written consent of the RepresentativesXxxxx Xxxxxxx and UBS, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock (other than the common stock to be sold pursuant to this Agreement and securities issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof) or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock for, or any warrants or other rights to purchase purchase, the foregoing, (ii) file or cause to become effective a registration statement under the Act (other than any registration statement on Form S-8) relating to the offer and sale of any Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exchangeable or exercisable for, or exchangeable for Common Stock or any warrants or other rights to purchase Common Stock or any other securities of purchase, the Company that are substantially similar to Common Stockforegoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances bona fide gifts, so long as the recipient agrees in writing with the underwriters to be bound by the terms of this lock-up agreement, (C) dispositions to partners, members or shareholders, so long as the recipient agrees in writing with the underwriters to be bound by the terms of the lock-up agreement, (D) dispositions to any trust for the direct or indirect benefit of this locked up person and/or the immediate family of such person, so long as that suck trust agrees in writing with the underwriters to be bound by the terms of this lock-up agreement, (E) dispositions by the executive officers and directors of the Company of shares of common stock for the purpose of satisfying tax liabilities associated with the vesting or exercise of awards granted pursuant to an equity plan of the Company existing as of the date hereof, provided that such dispositions shall not exceed 50,000 shares of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statementaggregate, (F) dispositions by an officer of any shares of Common Stock made under his existing Rule 10b5-1 trading plan, so long as the Pricing Prospectus and dispositions do not exceed 200,000 shares of Common Stock in the Prospectus, aggregate and (CG) the issuance establishment of employee stock options a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, so long as the plan does not exercisable provide for the transfer of Common Stock during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the ProspectusPeriod; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(k) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kl) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication similar communication, except for required 8-Ks and other required filings, directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consent, provided that such press release or communication relates to the offering of the Shares, and provided further that such consent may not be further withheld;
(lm) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mn) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(no) to use its reasonable best efforts either (i) to maintain the listing of the Shares Common Stock, including the Shares, for quotation on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;NASDAQ; and
(op) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as the Representatives may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representatives promptly and, if requested by the UnderwritersRepresentatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representatives immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters Representatives promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representatives promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representatives and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representatives shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the UnderwritersRepresentatives, for their the Representatives’ review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representatives shall reasonably object have objected in writing; and to promptly notify the Underwriters Representatives of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), to deliver to the Representatives, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) to furnish to the Underwriters one copy Representatives two (2) copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters;
(ij) if requested by the Representatives, to furnish to the Underwriters promptly for Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any information or documents filed with or furnished to the Commission materials pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)clause if such materials are available via XXXXX;
(jk) to apply the net proceeds from the sale of the Units and the sale of the Private Placement Warrants in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus or the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (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, (iv) the qualification of the Units for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange or qualification of the Units for listing on the NYSE and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA, including the legal fees (not to exceed $25,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Units, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and to the Underwriters’ sales forces, including, without limitation, the Company’s 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 costs of all Written Testing-the-Waters Communications and Testing-the-Waters Communications, (ix) the costs and expenses of qualifying the Units for inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (xi) the performance of the Company’s other obligations hereunder;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any other securities of the Company that are substantially similar to the Units, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) that the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if Company may (a) during issue and sell the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up PeriodPrivate Placement Warrants, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior issue and sell the Additional Units on exercise of the option provided for in Section 1 hereof, (c) register with the Commission pursuant to the expiration Registration Rights Agreement or the Forward Purchase Agreement, in accordance with the terms of the Lock-Up PeriodRegistration Rights Agreement or the Forward Purchase Agreement, as applicable, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day resale of the Lock-Up Periodsecurities covered thereby, then (d) issue and sell the restrictions imposed by this Section 4(jForward Purchase Shares and (e) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursissue securities in connection with a Business Combination;
(kn) at least one business day prior to the time of purchase, if the Sponsor shall have caused the purchase price for the Private Placement Warrants to issue no be wired to the Company, the Company shall direct the trustee under the Trust Agreement to deposit a portion of the purchase price for the Private Placement Warrants equal to the product of (i) $0.20 and (ii) the aggregate number of Units set forth on Schedule A-2 into the Trust Account and to hold such funds in escrow therein;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to provide the Representatives with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCompany, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Company, or the offering of the SharesUnits, and to issue no such press release or communications or hold such press conference without the UnderwritersRepresentatives’ prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesUnits, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesUnits;
(nr) to use its reasonable best efforts either (i) to cause the Units, including the shares of Common Stock and the Public Warrants, to be listed on the NYSE and to maintain the listing of the Shares Units, including the Common Stock and the Public Warrants, on the NYSE;
(s) for a period commencing at the Effective Time and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, (ii) to list, and the Company will use its best efforts to maintain the listing ofregistration of the Units, Common Stock and Warrants under the Shares on any other national securities exchange registered provisions of the Exchange Act, except, in the case of the Units, after the completion of a Business Combination; the Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except, in the case of the Units, after the completion of a Business Combination) without the prior written consent of the Representative; “Liquidation” means the distributions of the Trust Account to the Public Stockholders in connection with the redemption of shares of Common Stock held by the Public Stockholders pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation terms of the Company’s Amended and Restated Certificate of Incorporation, as amended, if the Company fails to consummate a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.Business Combination;
Appears in 1 contract
Samples: Underwriting Agreement (Far Point Acquisition Corp)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares Offered ADSs for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the SharesOffered ADSs; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesOffered ADSs); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Offered ADSs for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Offered ADSs, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Company will prepare, at its expensethe expense of the Selling Shareholder, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Secondary ADSs may be sold, the Company will use its best commercially reasonable efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and the Selling Shareholder will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) if, at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Offered ADSs, the Registration Statement shall cease to comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a new registration statement under the Act, relating to the Offered ADSs, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to you, (iii) use its commercially reasonable efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action necessary or appropriate to permit the public offering and sale of the Offered ADSs 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;
(e) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Pre-Pricing Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Pre-Pricing Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(ef) subject to Section 4(d5(i) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesOffered ADSs; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 13or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object have objected in writing; and to promptly notify the Underwriters you of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesADSs, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(i) hereof, to prepare and furnish, at the CompanySelling Shareholder’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to furnish make generally available to the Underwriters one copy of the Registration Statementits security holders, as initially filed with and, if not available on the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to the Underwriters promptly for a period of three years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; provided, however, that any information or documents filed with or furnished to the Commission pursuant to its ’s Electronic Data Gathering, Analysis and Retrieval System system (“XXXXX”), to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of twelve-month period but in any case not later than April 30, 2018;
(i) if requested by you, to furnish to you as early as practicable prior to the time of purchase but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 9(g) hereof, provided, however, that the Company shall not be considered furnished for the purposes of required to furnish any materials pursuant to this Section 4(i)clause if such materials are available via XXXXX;
(j) for a period to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act with respect to the sale of 90 ADSs pursuant hereto;
(k) beginning on the date hereof and ending on, and including, the date that is 45 days after the date hereof of the Prospectus Supplement (the “Lock-Up Period”), without the prior written consent of the RepresentativesUnderwriters, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock ADSs or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock the underlying Shares or any other securities of the Company that are substantially similar to Common StockADSs or the underlying Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock ADSs or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock the underlying Shares or any other securities of the Company that are substantially similar to Common StockADSs or the underlying Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock ADSs or the underlying Shares or any other securities of the Company that are substantially similar to ADSs or the underlying Shares, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock ADSs or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares offer and sale of the Secondary ADSs as contemplated by this Agreement, the Registration Statement, the Pricing Disclosure Package and the sales to the Underwriters pursuant to this AgreementProspectus, (B) issuances of Common Stock ADSs or Shares upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the each Pre-Pricing Prospectus and the Prospectus, Prospectus and (C) the issuance of employee stock options not exercisable during the Lockoptions, shares or other equity-Up Period pursuant to stock option based awards in connection with share incentive plans described in the Registration Statement, the each Pre-Pricing Prospectus and the Prospectus; provided, howeverand (D) any other transactions or issuances covered by a registration statement on Form S-8, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursincluding amendments thereto;
(kl) prior to the time of purchase, purchase to issue no provide you with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the SharesOffered ADSs, and to issue no such press release or communications or hold such press conference without the Underwriters’ your prior consent, which consent shall not be unreasonably withheld, conditioned or delayed;
(lm) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any ADSs or the underlying Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Offered ADSs or the underlying Shares, in each case other than the Registration Statement and the then most recent Prospectus;; and
(mn) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 Offered ADSs and the underlying Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Samples: Underwriting Agreement (Melco Crown Entertainment LTD)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Shares Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Representatives may reasonably designate and to maintain such qualifications in effect so long as the Representatives may be required request for the distribution of the SharesUnits; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the SharesUnits); and to promptly advise the Underwriters Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares Units may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters Representatives promptly and, if requested by the UnderwritersRepresentatives, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) to notify the Representatives immediately upon an event that causes the Company to no longer qualify as an EGC;
(e) to advise the Underwriters Representatives promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Representatives promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters Representatives and their the Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters Representatives shall reasonably object in writing;
(ef) subject to Section 4(d4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits; and, during such period, and to provide the UnderwritersRepresentatives, for their the Representatives’ review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters Representatives shall reasonably object have objected in writing; and to promptly notify the Underwriters Representatives of such filing;
(fg) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesUnits, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d4(e) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) change or to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for effect such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)compliance;
(h) to make generally available (within the meaning of Rule 158 under the Act) to its security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”), to deliver to the Representatives, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than the date determined in accordance with the provisions of the last paragraph of Section 11(a) of the Act and Rule 158(c) thereunder;
(i) to furnish to the Underwriters one copy Representatives two (2) copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters;
(ij) if requested by the Representatives, to furnish to the Underwriters promptly for Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; which have been read by the Company’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof, provided, however, that the Company shall not be required to furnish any information or documents filed with or furnished to the Commission materials pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)clause if such materials are available via XXXXX;
(jk) to apply the net proceeds from the sale of the Units and the sale of the Private Placement Warrants in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Units and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus or the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements and any closing documents (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, (iv) the qualification of the Units for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Units on any securities exchange or qualification of the Units for listing on the NYSE and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA, including the legal fees (not to exceed $25,000) and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Units, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and to the Underwriters’ sales forces, including, without limitation, the Company’s 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 costs of all Written Testing-the-Waters Communications and Testing-the-Waters Communications, (ix) the costs and expenses of qualifying the Units for inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (xi) the performance of the Company’s other obligations hereunder;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock Unit or any other securities of the Company that are substantially similar to Common Stockthe Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock Units or any other securities of the Company that are substantially similar to the Units, or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock Units or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) that the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if Company may (a) during issue and sell the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up PeriodPrivate Placement Warrants, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior issue and sell the Additional Units on exercise of the option provided for in Section 1 hereof, (c) register with the Commission pursuant to the expiration Registration Rights Agreement or the Forward Purchase Agreement, in accordance with the terms of the Lock-Up PeriodRegistration Rights Agreement or the Forward Purchase Agreement, as applicable, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day resale of the Lock-Up Periodsecurities covered thereby, then (d) issue and sell the restrictions imposed by this Section 4(jForward Purchase Shares and (e) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursissue securities in connection with a Business Combination;
(kn) at least one business day prior to the time of purchase, if the Sponsor shall have caused the purchase price for the Private Placement Warrants to issue no be wired to the Company, the Company shall direct the trustee under the Trust Agreement to deposit a portion of the purchase price for the Private Placement Warrants equal to the product of (i) $0.20 and (ii) the number of Units purchased from Company at $9.80 into the Trust Account and to hold such funds in escrow therein;
(o) prior to the time of purchase or any additional time of purchase, as the case may be, to provide the Representatives with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any SubsidiaryCompany, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Company, or the offering of the SharesUnits, and to issue no such press release or communications or hold such press conference without the UnderwritersRepresentatives’ prior consent;
(lp) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares Units by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the SharesUnits, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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 SharesUnits;
(nr) to use its reasonable best efforts either (i) to cause the Units, including the shares of Common Stock and the Public Warrants, to be listed on the NYSE and to maintain the listing of the Shares Units, including the Common Stock and the Public Warrants, on the NYSE;
(s) for a period commencing at the Effective Time and ending at least five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, (ii) to list, and the Company will use its best efforts to maintain the listing ofregistration of the Units, Common Stock and Warrants under the Shares on any other national securities exchange registered provisions of the Exchange Act, except, in the case of the Units, after the completion of a Business Combination; the Company will not deregister the Units, Common Stock or Warrants under the Exchange Act (except, in the case of the Units, after the completion of a Business Combination) without the prior written consent of the Representative; “Liquidation” means the distributions of the Trust Account to the Public Stockholders in connection with the redemption of shares of Common Stock held by the Public Stockholders pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation terms of the Company’s Amended and Restated Certificate of Incorporation, as amended, if the Company fails to consummate a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.Business Combination;
Appears in 1 contract
Samples: Underwriting Agreement (Far Point Acquisition Corp)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required reasonably request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation entity or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) ), in connection with the sale of the Shares Shares, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d5(d) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwritersyou, for their your review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no reflect in such report, statement or document to which the Underwriters shall reasonably object in writingany reasonable comments that you may provide; and to promptly notify the Underwriters you of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(d5(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such changechange or to effect such compliance;
(g) to furnish make generally available to its stockholders security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year such twelve-month period but in any case not later than [insert due date of last 10-K or 10-Q that would qualify under Rule 158 as an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)earnings statement covering 12 months after effectiveness];
(h) to furnish to the Underwriters one copy you copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to you as early as practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand the Subsidiaries which have been read by the Company’s independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)8(g) hereof;
(j) to apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Prospectus and to file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(k) 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, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, 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 Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters incurred in connection with such qualifications and determinations) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares to be listed on the NYSE and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by FINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of qualifying the Shares for inclusion in the DTC’s Direct Registration System, (ix) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, and (x) the performance of the Company’s other obligations hereunder. The Company further agrees to pay 50% of the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, including, without limitation, the costs for expenses associated with the production of road show slides and graphics, fees and expenses of any consultants (which term shall not include the Underwriters) engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, as well as 50% of the cost of any aircraft chartered in connection with the road show, it being understood that the Underwriters agree to pay the remaining 50% of the costs and expenses described in this paragraph.
(l) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof of the Prospectus (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to any Common Stock or any other securities of the Company or the Operating Partnership that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock for, or any warrants or other rights to purchase purchase, the foregoing, (ii) file or cause to become effective a registration statement under the Act relating to the offer and sale of any Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exchangeable or exercisable for, or exchangeable for Common Stock or any warrants or other rights to purchase Common Stock or purchase, the foregoing, including any other securities of units in the Company that are substantially similar to Common StockOperating Partnership, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company or the Operating Partnership that are substantially similar to Common Stock or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stockfor, or any warrants or other rights to purchase Common Stock or any such securitiespurchase, the foregoing, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, and (C) the filing of registration statements on Form S-8 relating to shares of Common Stock which may be issued pursuant to equity incentive plans described in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus, (D) the issuance to employees and directors of employee restricted stock or stock options not vested or exercisable during the Lock-Up Period pursuant to stock option equity incentive plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the ProspectusProspectus and (E) the issuance of shares of Common Stock in exchange for units of the Operating Partnership (provided, that in connection with and prior to such issuance the Company requires the person or entity to whom such shares are issued to execute and deliver an agreement substantially in the form of Exhibit A hereto); provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j5(m) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kn) prior to the time of purchase or any additional time of purchase, as the case may be, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consentconsent which shall not be unreasonably withheld;
(lo) to conduct its business and operations in a manner so as to qualify as a REIT under Sections 856 through 860 of the Code beginning with its taxable year ending December 31, 2009;
(p) not, at any time at or after the execution of this Agreement, to to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mq) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(nr) to use its reasonable best efforts either (i) to maintain cause the listing of Common Stock, including the Shares Shares, to be listed on the NYSE, (ii) to list, NYSE and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;such listing; and
(os) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agreesagrees with the Agent:
(a) before amending or supplementing the Registration Statement or the Prospectus (other than as a result of any documents incorporated by reference therein), or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Act, to furnish to the Agent a copy of each such proposed amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission and the Company will consider in good faith any comments with respect thereto submitted by the Agent prior to the filing of any such proposed amendment or filing;
(b) to prepare a Prospectus Supplement, with respect to any Shares sold by the Company pursuant to this Agreement in a form previously approved by the Agent and to file such Prospectus Supplement pursuant to, and within the time periods required by, Rule 424(b) under the Act and to provide copies of such Prospectus Supplement to the Agent via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Agent and, at the Agent’s request, to also furnish copies of the Prospectus to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market;
(c) to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares, and during such same period to advise the Agent, promptly after the Company receives notice thereof, of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, or the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Shares, or the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amendment or supplementation of the Registration Statement or Prospectus or for additional information; and
(d) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, to use promptly its commercially reasonable efforts to obtain its withdrawal;
(e) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Agent may reasonably designate and to maintain such qualifications in effect so long as may be required for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation corporation, become a dealer of securities, or become subject itself to taxation in any such jurisdiction in, or to consent to the service of process under the laws of any such jurisdiction state (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(bf) to make available to the Underwriters Agent in New York CityChicago, as soon as practicable after the date of this AgreementRegistration Statement becomes effective, and thereafter from time to time to furnish to the UnderwritersAgent, 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 this Agreementthe Registration Statement) as the Underwriters Agent may reasonably request for the purposes contemplated by the Act; and for so long as this Agreement is in case the Underwriters are required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Acteffect, the Company will prepareprepare and file promptly, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance comply with the requirements of Section 10(a)(3) of the Act;
(cg) if, at to furnish or make available to the time Agent during the term of this Agreement is executed and deliveredfor a period of two years thereafter (i) copies of any reports or other communications which the Company shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, it is necessary for any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement to be quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and become effective before the Shares 8-K, or such other similar form as may be solddesignated by the Commission, and to furnish to the Agent from time to time during the term of this Agreement such other information as the Agent may reasonably request regarding the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effectivethe Subsidiaries, and will pay any fees in accordance with the Act each case as soon as possiblesuch reports, and communications, documents or information becomes available or promptly upon the Company will advise request of the Underwriters promptly andAgent, if requested by the Underwriters, will confirm such advice in writing, as applicable;
(i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective and (iih) if Rule 430A at any time during the term of this Agreement any event shall occur or Rule 430C under the Act condition exist as a result of which it is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required under Rule 424(b)necessary, in the manner and within reasonable opinion of counsel for the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether Agent or counsel for the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters promptly, and, if requested by the UnderwritersCompany, to confirm such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters promptly of any proposal to further amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any information statement required to be filed by the Company with the Commission in order to comply with the 1934 Act for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filing;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would will not include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they are madeexisting at the time the Prospectus is delivered to a purchaser, not misleadingor if it shall be necessary, and, during in the reasonable opinion of either such time, subject to Section 4(d) hereofcounsel, to prepare amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Act, immediate notice shall be given, and furnish, at the Company’s expenseconfirmed in writing, to the Underwriters Agent to cease the solicitation of offers to purchase the Shares in the Agent’s capacity as agent and to cease sales of any Shares the Agent may then own as principal, and the Company will promptly prepare and file with the Commission such amendments amendment or supplements supplement, whether by filing documents pursuant to such Prospectus the Act, the 1934 Act or otherwise, as may be necessary to reflect any correct such changeuntrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements;
(gi) to furnish generally make available to its stockholders security holders as soon as practicable practicable, but not later than 90 days after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow close of the Company and period covered thereby, an earnings statement (in form complying with the Subsidiaries for such fiscal yearprovisions of Section 11(a) under the Act) covering each twelve-month period beginning, accompanied by a copy in each case, not later than the first day of the certificate or report thereon Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of nationally recognized independent certified public accountants duly registered the Registration Statement with the Public Company Oversight Accounting Board)respect to each sale of Shares;
(hj) to furnish to the Underwriters one copy Agent two signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, including all exhibits theretothereto and all documents incorporated by reference therein;
(ik) to furnish to apply the Underwriters promptly for a period of three years net proceeds from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities sale of the Company is listed; provided, however, that any information or documents filed with or furnished to Shares in the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for manner set forth under the purposes caption “Use of this Section 4(i)Proceeds” in the Prospectus;
(jl) for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose ofCompany will not, directly or indirectly, take any action designed to cause 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 and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stockresult in, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary or the offering of the Shares, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted constitutes or might reasonably be expected to cause or result in, under the 1934 Act or otherwiseconstitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(m) 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 any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agent and to dealers (including costs of mailing and shipment), (ii) the registration, issue and delivery of the Shares, (iii) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Agent in connection therewith) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Agent, (iv) the listing of the Shares on the Exchange and any registration thereof under the 1934 Act, (v) any filing for review of the public offering of the Shares by the NASD, (vi) the reasonable fees and disbursements of counsel to the Agent in connection with the negotiation and completion of this Agreement (which shall include all matters required to be completed as conditions precedent to the parties agreeing to and executing the initial Transaction hereunder) and (vii) the performance of the Company’s other obligations hereunder; provided that the Agent shall be responsible for any transfer taxes on resale of Shares by it, any costs and expenses associated with the sale and marketing of the Shares, and legal costs of the Agent other than as specifically provided above;
(n) with respect to the offering contemplated hereby, that the Company will not offer shares of its Common Stock or any other securities convertible into or exchangeable or exercisable for shares of Common Stock in a manner in violation of the Act; the Company will not distribute any offering material in connection with the offer and sale of the Shares, other than the Prospectus, Registration Statement and other materials permitted by the Act or the rules and regulations promulgated thereunder;
(o) to use its reasonable best efforts either (i) to maintain the listing of cause the Shares to be listed on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common StockExchange; and
(p) to apply use its best efforts to satisfy, or cause to be satisfied, the net proceeds received by it from the sale conditions set forth below in Section 6 on or in respect of the Shares in the manner described in the Prospectus under “Use of Proceeds”each Closing Date hereunder.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required reasonably request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or corporation, to subject itself to taxation in any such foreign jurisdiction or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for any a post-effective amendment to the Registration Statement Statement, or a Registration Statement under Rule 462(b) Registration Statement under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its best efforts to cause such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act Act, as soon as possible, ; and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when such post-effective amendment or such Rule 462(b) Registration Statement has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required under Rule 424(bagrees to file in a timely manner in accordance with such Rules), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement or the Exchange Act Registration Statement, any Preliminary Prospectus or the Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to timely file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act for so long as the delivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares; and, during such period, and to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; filing and to promptly notify the Underwriters you of such filingfilings;
(f) to advise the Underwriters promptly of the happening of any event known to the Company within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, and during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(g) to furnish make generally available to its stockholders security holders, and, if not available on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system, to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year an annual report (including a consolidated balance sheet and statements of incomesuch twelve-month period but in any case not later than March 17, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)2008;
(h) to furnish to the Underwriters one copy you six copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(i) to furnish to you as early as practicable prior to the Underwriters promptly for time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period copy of three years from the date of this Agreement (i) copies of any reports, proxy latest available unaudited interim and monthly consolidated financial statements, or other communications which the Company shall send to its stockholdersif any, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed; providedand the Subsidiaries which have been read by the Company’s independent registered public accountants, however, that any information or documents filed with or as stated in their letter to be furnished to the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for the purposes of this Section 4(i)6(d) hereof;
(j) 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 and to file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Act;
(k) 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, each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the qualification of the Shares for a period offering and sale under state or foreign laws and the determination of 90 their eligibility for investment under state or foreign law (including the reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters incurred in connection with such qualifications and determinations) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (iv) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the NASDAQ and any registration thereof under the Exchange Act, (v) any filing for review of the public offering of the Shares by the NASD, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters incurred in connection with such filing, (vi) the fees and disbursements of any transfer agent or registrar for the Shares, (vii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged by the Company 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 cost1 of any aircraft chartered in connection with the road show, (viii) the costs and expenses of qualifying the Shares for inclusion in the book-entry settlement system of the DTC, (ix) the preparation and filing of the Exchange Act Registration Statement, including any amendments thereto, (x) the offer and sale of the Reserved Shares, including all costs and expenses of UBS-FinSvc and the Underwriters, including the fees and disbursement of counsel for the Underwriters and (xi) the performance of the Company’s other obligations hereunder;
(l) to comply with Rule 433 under the Act;
(m) beginning on the date hereof and ending on, and including, the date that is 180 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the RepresentativesUBS, not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call 1 Execution copy to be modified to provide for 75/25 split if offering size is above $150MM and 50/50 split if offering size is above $175MM. Form will be filed as currently provided. equivalent position within the meaning of Section 16 of the 1934 Exchange Act and the 1934 Act Regulationsrules and regulations of the Commission promulgated thereunder, with respect to to, any Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock Stock, or any warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stocksuch securities, (ii) file or cause to be declared become effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stock Stock, or any warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stocksuch securities, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exchangeable or exercisable or exchangeable for Common Stock, or any warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares and the sales to the Underwriters pursuant to as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, and (C) the issuance to employees or directors of employee restricted stock grants or stock options not vested or exercisable during the Lock-Up Period pursuant to stock option equity incentive plans described in the Registration StatementStatement (excluding the exhibits thereto), the Pricing each Preliminary Prospectus and the Prospectus, (D) the filing of registration statements on Form S-8 relating to shares of Common Stock which may be issued pursuant to existing equity incentive plans and (E) the registration under the Act and issuance by the Company of shares of Common Stock, in an aggregate amount not to exceed 10% of the shares of Common Stock outstanding immediately following the time of purchase, in connection with any acquisitions or strategic investments by the Company or any of its Subsidiaries so long as such issuances under this clause (E) are conditioned upon the execution by the recipients of an agreement of a type contemplated by the Lock-Up Agreement; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j4(m) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(kn) prior to the time of purchase or any additional time of purchase, as the case may be, except as required by law, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary Subsidiary, or the offering of the Shares, without the Underwriters’ your prior consentconsent (such consent not to be unreasonably withheld);
(lo) not, at any time at or after the execution of this Agreement, to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) ), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Registration Statement and the then most recent Prospectus;
(mp) not to, and to cause its the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted constituted, or might reasonably be expected to cause or result in, under the 1934 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;
(nq) to use its reasonable best efforts either (i) to maintain cause the listing of the Shares Common Stock to be listed for quotation on the NYSE, (ii) to list, NASDAQ and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Actsuch listing;
(or) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(ps) to apply cause each Directed Share Participant that purchases at least $100,000 of Reserved Shares to execute a Lock-Up Agreement and otherwise to cause the net proceeds received Reserved Shares to be restricted from sale, transfer, assignment, pledge or hypothecation to such extent as may be required by it from the sale NASD and its rules, and to direct the transfer agent to place stop transfer restrictions upon such Reserved Shares during the Lock-Up Period or any such longer period of time as may be required by the NASD and its rules; and to comply in all material respects with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Reserved Shares are offered in connection with the manner described in the Prospectus under “Use of Proceeds”Directed Share Program.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Underwriters you may reasonably designate and to maintain such qualifications in effect so long as you may be required request for the distribution of the Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or subject itself to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Underwriters you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this AgreementAgreement becomes effective, and thereafter from time to time to furnish to the Underwriters, 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 this Agreementthe Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Act; in case the Underwriters are any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the ActAct in connection with the sale of the Shares, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement thereto to be filed with the Commission and become declared effective before the Shares may be sold, the Company will use its best efforts endeavor to cause the Registration Statement or such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, and the Company will advise the Underwriters you promptly and, if requested by the Underwritersyou, will confirm such advice in writing, (i) when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective effective, and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; Act (which the Company will effect the filings required agrees to file in a timely manner under Rule 424(bsuch Rule), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus;
(d) to advise the Underwriters you promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters you promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Statement or the Prospectus, the Prospectus or including by filing any Issuer Free Writing Prospectus documents that would be incorporated therein by reference, and to provide the Underwriters you and their Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any the offering or sale of the Shares; and, during such period, to provide the Underwriters, for their review and comment, you with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Exchange Act during such period for your review and comment a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters you shall reasonably object in writing; and to promptly notify the Underwriters you of any such filing;
(f) if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act and pay the applicable fees in accordance with the Act;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the period time during which a prospectus relating to the Shares is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change;
(gh) to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the 1000 Xxx) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the 1000 Xxx) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than May 10, 2005;
(i) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting BoardPCAOB);
(hj) to furnish to the Underwriters one copy you [two] copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, thereto (including all exhibits theretothereto and documents incorporated by reference) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(ik) to furnish to you promptly and, upon request, to each of the other Underwriters promptly for a period of three five years from the date of this Agreement (i) copies of any reports, proxy statements, or press releases or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly quarterly, transition and current reports filed with or furnished to the Commission on Forms 2010-F K, 10-Q or 68-K, or such other similar forms as may be designated by the Commission and Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listedlisted and (iv) such other information as you may reasonably request regarding the Company or the Subsidiary; provided, however, that any information or documents filed with or furnished in no case shall the Company be required to the Commission furnish materials pursuant to its Electronic Data Gathering, Analysis this paragraph which are filed and Retrieval System shall be considered furnished for publicly accessible via the purposes of this Section 4(i)EXXXX database or publicly available on the Company’s website;
(jl) for to furnish to you as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent copy of the Representativeslatest available unaudited interim and monthly financial statements, not if any, of the Company and the Subsidiary which have been read by the Company’s independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(d) hereof;
(m) 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;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, each Prepricing Prospectus, each Prospectus Supplement, the Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements and any closing documents (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), (iv) the qualification of the Shares for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any securities exchange or qualification of the Shares for quotation on the NASDAQ and any registration thereof under the Exchange Act, (vi) any filing for review of the public offering of the Shares by the NASD, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ sales forces, 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 (ix) the performance of the Company’s other obligations hereunder;
(o) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the 1934 Act and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (ii) or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, Stock for a period of 90 days after the date hereof (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the “Lock-Up Period pursuant to stock option plans described in Period”), without the Registration Statementprior written consent of UBS, the Pricing Prospectus and the Prospectus; provided, however, except that if (ai) during the period that begins on the date that is fifteen (15) 15 calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; , or (bii) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) -day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) section shall continue to apply until the expiration of the date that is fifteen (15) 15 calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(k) prior to , provided however, this provision will not apply if, within three days of the time termination of purchasethe Lock-Up Period, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company delivers to UBS a certificate, signed by the Chief Financial Officer or any SubsidiaryChief Executive Officer of the Company, the financial condition, results of operations, business, properties, assets, or liabilities certifying on behalf of the Company or any Subsidiary or that the offering Company’s shares of Common Stock are, as of the Sharesdate of delivery of such certificate, without “actively trading securities,” as defined in Regulation M, 17 CFR 242.101(c)(1) (such notice shall be delivered in accordance with Section 11 of the Underwriters’ prior consent;
Underwriting Agreement); this section shall not apply to (li) not, at any time at or after the execution registration of the Shares and the sales to the Underwriters pursuant to this Agreement, to directly (ii) issuances of Common Stock upon the exercise of options or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) warrants disclosed as outstanding in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus, and (iii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement and the Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(np) to use its reasonable best efforts either (i) to maintain cause the listing of the Shares Common Stock to be listed for quotation on the NYSE, (ii) to list, NASDAQ and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;such listing; and
(oq) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(p) to apply the net proceeds received by it from the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”.
Appears in 1 contract
Samples: Underwriting Agreement (Aphton Corp)
Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale by the Company under the securities or blue sky laws of such states or other jurisdictions as the Underwriters Agents may reasonably designate and to maintain such qualifications in effect so long as the Agents may be required request for the distribution of the Shares; provided, however, provided that the Company shall not be required to qualify as a foreign corporation or subject itself corporation, to taxation in any such jurisdiction or consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares)Shares by the Company) or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject; and to promptly advise the Underwriters Agents of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after the date of this Agreement, and thereafter from time to time to furnish to the Underwriters, as many Agents electronic copies of the Basic Prospectus, any Preliminary Prospectus Supplement and the Prospectus (or of the Prospectus in each case as amended or supplemented if the Company shall have made any amendments or supplements thereto after the respective dates of such documents); to furnish the Agents, without charge, during the period beginning on the date hereof and ending on the later of this Agreementthe time of purchase or such date, as in the opinion of counsel for the Agents, the Prospectus Supplement is no longer required by law to be delivered in connection with sales by the Agents, as many copies of the Prospectus and any amendments and supplements thereto (including any Incorporated Documents) as the Underwriters Agents may request for the purposes contemplated by the Act; in case the Underwriters are required to deliver (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the sale of the Shares a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;reasonably request.
(c) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment to the Registration Statement or a Rule 462(b) Registration Statement thereto to be filed with the Commission and become declared effective before the Shares may be soldsold in the Offering, the Company will use its best efforts endeavor to cause the Registration Statement or such post-effective amendment or such Rule 462(b) Registration Statement to be filed and become effective, and will pay any fees in accordance with the Act effective as soon as possible, possible and the Company will advise the Underwriters Agents promptly and, if requested by the UnderwritersAgents, will confirm such advice in writing, (i) writing when the Registration Statement and any such post-effective amendment or such Rule 462(b) Registration Statement thereto has become effective and (ii) if Rule 430A or Rule 430C under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; the Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectuseffective;
(d) to advise the Underwriters Agents promptly, and, if requested by the Underwriters, to confirm confirming such advice in writing, of any request by the Commission Commission, made prior to the time of purchase, for amendments or supplements to the Registration Statement, any Preliminary Prospectus, Statement or the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, made prior to the time of purchase, suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and, if the Commission should enter a stop order prior to the time of purchase suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing ProspectusStatement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Underwriters Agents promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Statement or the Prospectus, made prior to the Prospectus or time of purchase, including by filing any Issuer Free Writing Prospectus and documents that would be incorporated therein by reference, to provide the Underwriters Agents and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writingfiling;
(e) subject to Section 4(d) hereof, to file promptly all reports and documents and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the 1934 Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required by the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) to be delivered in connection with any sale of Shares; and, during such period, to provide the Underwriters, for their review and comment, with a copy of such reports and statements and other documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the 1934 Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which the Underwriters shall reasonably object in writing; and to promptly notify the Underwriters of such filingOffering;
(f) to advise the Underwriters Agents promptly of the happening of any event known to the Company within the period time during which a prospectus for the Offering is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of SharesAct, which event could require requires the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such time, subject to Section 4(d) hereof, to prepare and furnish, at the Company’s 's expense, to the Underwriters Agents promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change; before amending the Registration Statement or supplementing any Preliminary Prospectus Supplement or the Prospectus in connection with the Offering, the Company will furnish you with a copy of such proposed amendment or supplement and will not file such amendment or supplement to which you reasonably object;
(g) to furnish make generally available to its stockholders security holders, and to deliver to the Agents, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the end termination of each fiscal year an annual report (including a consolidated balance sheet and statements of income, stockholders’ equity and cash flow of the Company and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants duly registered with the Public Company Oversight Accounting Board)twelve-month period;
(h) for so long as a prospectus is required to furnish be delivered under the Act in connection with the Offering, to comply with all the Underwriters one copy of undertakings contained in the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including, if requested, all exhibits thereto;
(i) to furnish to apply the Underwriters promptly for a period of three years net proceeds from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its stockholders, (ii) copies of all annual, quarterly and current reports filed with or furnished to the Commission on Forms 20-F or 6-K, or such other similar forms as may be designated by the Commission and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities sale of the Company is listed; provided, however, that any information or documents filed with or furnished to Shares in the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System shall be considered furnished for manner set forth under the purposes caption "Use of this Section 4(i)Proceeds" in the Prospectus;
(j) without duplication, to reimburse the Agents for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent expenses in accordance with Section 4 of the RepresentativesEngagement Letter and to pay all of the Company's costs, not to expenses, fees and taxes in connection with (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 preparation and filing of the 1934 Act Registration Statement, the Basic Prospectus, each Preliminary Prospectus Supplement and Prospectus Supplement, and any amendments or supplements thereto, and the 1934 Act Regulations, with respect to any Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities printing and furnishing of the Company that are substantially similar to Common Stock, (ii) file or cause to be declared effective a registration statement under the Act relating copies of each thereof to the offer Agents (including costs of mailing and sale of any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company that are substantially similar to Common Stock, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or warrants or other rights to purchase Common Stock or any such securities, whether any such transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (ishipment), (ii) or (iii)the registration, exceptissue, in each case, for (A) the registration sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable by the sales to Company upon the Underwriters pursuant to sale, issuance or delivery of the Shares sold by the Company in the Offering, (iii) the producing, word processing and/or printing of this Agreement, any Purchase Agreements, any Powers of Attorney and any closing documents (Bincluding compilations thereof) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement, the Pricing Prospectus and the Prospectusreproduction and/or printing and furnishing of copies of each thereof to the Agents and the Purchasers, (iv) the qualification of the Shares for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Agents) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Agents and to dealers, (v) any qualification of the Shares for quotation on Nasdaq and any registration thereof under the Exchange Act, (vi) the fees and disbursements of any transfer agent or registrar for the Shares, (vii) the costs and expenses of the Company relating to any presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares, and (Cviii) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement, the Pricing Prospectus and the Prospectus; provided, however, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day performance of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(j) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occursCompany's other obligations hereunder;
(k) prior to until the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities completion of the Company or any Subsidiary or the offering distribution of the SharesShares in the Offering, without the Underwriters’ prior consent;
(l) not, at any time at or after the execution of this Agreement, not to directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act) or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, other than the Registration Statement and the then most recent Prospectus;
(m) not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed, designed to or which has constituted that would constitute or might that would reasonably be expected to cause or result in, under the 1934 Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(n) to use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, (ii) to list, and to maintain the listing of, the Shares on any other national securities exchange registered pursuant to Section 6(a) of the 1934 Act or (iii) to arrange for the quotation, and to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) of the 1934 Act;
(o) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock; and
(pl) the Company will timely, and in any event prior to apply the net proceeds received by it from time of purchase, file this Agreement with the sale of the Shares in the manner described in the Prospectus under “Use of Proceeds”Commission on an appropriate form.
Appears in 1 contract
Samples: Agency Agreement (Stemcells Inc)
