Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that: (a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T. (x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing. (d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act. (e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available. (f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law. (g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available. (h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request. (i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus. (j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act. (k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan. (l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE. (m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals. (n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares. (o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder. (p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company. (q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission. (r) The Company will comply with all of the provisions of any undertakings in the Registration Statement. (s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years. (t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act. (u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code. (v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. (w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared. (x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and -------------------------------- agrees with each of the Underwriters that:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR UBS Warburg may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR UBS Warburg of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) ), on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-S- T.
(xc) Xhe The Company will advise FBR UBS Warburg immediately, confirming such advice in writing, of (i) the receipt of any comments from the Commission relating to the Registration Statements or the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, any other filing of the Company under the Securities Act or the Exchange Act, (ii) any request by the Commission for amendments or supplements to the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, the Registration Statement or the Prospectus Statements, or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of any one of the Registration Statement Statements or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR UBS Warburg promptly of any proposal to amend or supplement the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, the Registration Statement or the Prospectus Statements, including by filing any documents that would be incorporated therein by reference reference, and to file no such amendment or supplement to which FBR UBS Warburg shall object to in writing.
(d) The Company will advise FBR UBS Warburg promptly and, if requested by FBRUBS Warburg, will confirm such advice in writing when when, prior to the termination of the underwriting syndicate contemplated in the Agreement, any post-effective amendment to any one of the Registration Statement Statements becomes effective under the Securities Act.
(e) The Company will, promptly upon request, will furnish to FBR UBS Warburg and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) if different than the items contained in clauses (i) and (ii) above, copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listedlisted (other than correspondence or other similar communications), and (iv) such other information as FBR UBS Warburg may reasonably request regarding the CompanyCompany or any of the Subsidiaries, in each case as soon as such communicationcommunications, document documents or information becomes become available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company Company, the Subsidiaries or the Manager within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR UBS Warburg or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR UBS Warburg may from time to time reasonably request of an appropriate amendment to the Registration Statement Statements or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made availablethereunder.
(h) The Company will furnish to FBR UBS Warburg a signed copy of the Registration StatementStatements, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR UBS Warburg may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to furnish to FBRUBS Warburg, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will furnish to UBS Warburg, as early as practicable prior to the time of purchase and the 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 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.
(l) Neither the Company or the Subsidiaries nor the Manager will sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock stock, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement and except for issuances of Common Stock upon the exercise of outstanding options, for a period of 45 90 days after the date hereof (the "Lock-Up Period")hereof, without the prior written consent of FBRUBS Warburg. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the DRSPP or (iv) the grant of awards pursuant to the Company's existing Discount WaiverAmended and Restated 1992 Stock Option and Incentive Plan (the "Plan") or issuances pursuant to the exercise of employee stock options or other awards, Direct Stock Purchase and Dividend Reinvestment Planincluding restricted stock awards approved under an amendment to the Plan on July 17, 2001.
(lm) The Company will use its best efforts to cause each officer and director of the Company to furnish to UBS Warburg, prior to the time of purchase, a letter or letters, substantially in the form of Exhibit C hereto, --------- pursuant to which each such person shall agree not to sell, offer, contract to sell, pledge, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock of the Company for a period of 90 days after the date hereof, without the prior written consent of UBS Warburg.
(n) The Company will use its best efforts to cause the Shares to be listed on the NYSE New York Stock Exchange and to maintain such listing and to file with the NYSE New York Stock Exchange all documents and notices required by the NYSE New York Stock Exchange of companies that have securities that are listed on the NYSENew York Stock Exchange.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(no) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(op) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration StatementStatements, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualificationword processing and/or printing of this Agreement, if anyany Agreement among the Underwriters, any dealer agreements, any Statements of Information, the Custody Agreement and the Powers of Attorney, as applicable, and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (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 to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (ivv) any listing of the Shares on the NYSE New York Stock Exchange and any registration thereof under the Exchange Act, (vvi) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(pq) The Company will not (i) take, directly or indirectly, prior Prior to termination of the underwriting syndicate contemplated by this Agreement, neither the Company or the Subsidiaries nor the Manager will (i) take, directly or indirectly, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(qr) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(s) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(rt) The Company will comply with all of the provisions of any undertakings in the Registration StatementStatements.
(su) The Company has and the Subsidiaries have been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(tv) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(uw) The Company has retained Ernst & Young PricewaterhouseCoopers LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and the Company's exempt status under the Investment Company Act and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act Code and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to exempt status under the Investment Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company and, where applicable, the Manager hereby covenants covenant and agrees agree with each of the Underwriters that:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Lead Manager may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares; provided, provided however, that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR the Lead Manager of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters Lead Manager and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. (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 the parties may mutually agree and will furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. (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 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 the Registration Statement) in such quantities and at such locations as the Underwriters Lead Manager may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.
(xc) Xhe The Company will advise FBR the Lead Manager immediately, confirming such advice in writing, of (i) the receipt of any comments from the Commission relating to the Registration Statement or the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, any other filing of the Company under the Securities Act or the Exchange Act, (ii) any request by the Commission for amendments or supplements to the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, the Registration Statement or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, the
(iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or (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. The Company will promptly provide the Lead Manager with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Shares under the Securities Act or, prior to the termination of the underwriting syndicate contemplated in this Agreement, relating to any documents incorporated by reference into the Registration Statement or the Prospectus. The Company will advise FBR the Lead Manager promptly of any proposal to amend or supplement the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, the Registration Statement or the Prospectus Statement, including by filing any documents that would be incorporated therein by reference reference, will afford the Lead Manager a reasonable opportunity to comment on any such proposed amendment or supplement and to will not file no any such amendment or supplement to which FBR the Lead Manager shall object to in writing.
(d) The Company will use its best efforts to advise FBR the Lead Manager promptly and, if requested by FBRthe Lead Manager, will confirm such advice in writing when when, prior to the termination of the underwriting syndicate contemplated in the Agreement, any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so long as required the Representative may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representative, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representative shall object to in writing.;
(d) The the Company will advise FBR the Representative promptly and, if requested by FBRthe Representative, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representative promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representative or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representative copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentative, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than August 9, 2007;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representative promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representative may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActAmerican Stock Exchange, (vvi) the filing, if any, 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, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not (i) taketo 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
Company or the Partnership that are substantially similar to Common Shares, respectively, for a period of 30 days after the date hereof (qthe “Lock-Up Period”), without the prior written consent of the Representative, except for (1) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange ActShares and the sales to the Underwriters pursuant to this Agreement, as amended(2) the issuance of units of limited partnership interest by the Partnership in exchange for properties, or otherwise complies with and (3) the Commodity Exchange Actissuance of Common Shares in redemption of units of limited partnership interest; provided, as amended. In additionhowever, 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 will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act issues an earnings release or otherwise comply with that act material news or with an applicable no-action letter a material event relating to the Company from the Commodities Futures Trading Commission.
occurs; or (rb) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time 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(n) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three years (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(o) to use its best efforts to cause the Common Shares to be listed on the American Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), an "investment company," as such term is defined in the Investment Company Act.form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (iq) to test procedures and conduct annual compliance reviews designed to determine compliance with maintain a transfer agent and, if necessary under the REIT provisions jurisdiction of incorporation of the Code and Company, a registrar for the Common Shares;
(iir) to otherwise assist comply with Rule 433(d) under the Company in monitoring appropriate accounting systems Act (without reliance on Rule 164(b) under the Act) and procedures designed to determine compliance with Rule 433(g) under the REIT provisions of the Code.Act; and
(vs) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time prior to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files of purchase or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functionsany additional time of purchase, as appropriate the case may be, to allow timely decisions regarding required disclosure issue no press release or other communication directly or indirectly and to ensure that material information relating hold no press conferences with respect to the Company is made known to them by others within those entitiesor any Subsidiary, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions financial condition, results of operations, business, properties, assets, or liabilities of the Sarbanes-Oxley ActCompany or any Subsidiary, or the offering of the Shares, without the Representative’s prior consent, unless such press release or other communication and such press conference is in the ordinary course of business.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the Securities Act not later than 10:00 A.M. (New York City time) time period prescribed by law, on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act.Act or requested by the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and furnish, at the Company's expense, to the Underwriters promptly such amendments or if it is necessary at any time supplements to amend or supplement the Prospectus as may be necessary to comply reflect any such change;
(i) to furnish promptly to the Representatives such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith) as the Underwriters may reasonably request;
(j) to furnish to the Underwriters, not less than two business days before filing with the Commission, subsequent to the effective date of the Prospectus and during any law. If within the period of time during in which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist whichRegulations, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making a copy of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required document proposed to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement filed with the Commission and thereafter promptly furnishpursuant to Section 13, at 14, or 15(d) of the Company's own expense, Exchange Act;
(k) to apply the Underwriters and to dealers copies net proceeds of the sale of the Shares substantially in such quantities and at such locations as FBR may from time to time reasonably request accordance with its statements under the caption "Use of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, Proceeds" in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Prospectus;
(gl) The Company will to make generally available to its stockholders security holders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning quarter first occurring after the first anniversary of the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy Regulation, an earnings statement complying with the provisions of Section 11(a) of the Securities Act and (in form, at the option of the Company, complying with the provisions of Rule 158 thereunder and will advise of the Underwriters in writing when such statement has been made available.Securities Act Regulations) covering a period of 12 months beginning on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act Regulation;
(hm) The Company will furnish to FBR a signed copy of use its best efforts to effect and maintain the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale listing of the Shares in on the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish New York Stock Exchange and to FBR, not less than two Business Days before a filing file with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the New York Stock Exchange Act all documents and during such period will file all such documents in a manner and within the time periods notices required by the New York Stock Exchange Act.of companies that have securities that are listed on the New York Stock Exchange;
(kn) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to except in the Prospectus, ordinary course of business in connection with (iiix) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period400,000 options), (ivy) the payment in stock to directors of the Company of a portion of their annual or other directors fees, fees and (vz) the filing issuance of any shelf registration statement after thirty 1,287,501 shares of common stock (the "Merger Shares") to the stockholders of the Advisor in connection with the consummation of the proposed merger of the Advisor with and into the Company pursuant to that certain Agreement and Plan of Merger, dated September 24, 2001, among the Company, the Advisor and the other parties thereto (the "Merger"), to refrain during a period of 120 days from the date hereofof the Prospectus, without the prior written consent of the Representatives, from (i) offering, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (viB) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted Common Shares issued by the Company upon the exercise of an option outstanding on the date hereof or upon the exercise of any option granted in the ordinary course of business as provided herein or (viiC) shares the Merger Shares to be issued by the Company upon the consummation of Common Stock issued pursuant to the Merger;
(o) the Company will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(lp) The the Company will use its best efforts to cause continue to meet the requirements to qualify as a real estate investment trust under the Code;
(q) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(r) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act;
(s) if at any time during the 30-day period after the execution of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be listed materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, in compliance with the Securities Act, the Securities Act Regulations and other applicable laws and reasonably satisfactory to the Representatives, responding to or commenting on the NYSE and such rumor, publication or event; and
(t) to maintain such listing and to file with the NYSE all documents and notices required by the NYSE a system of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.
(n) The Company will engage intervals and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection appropriate action is taken with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay respect to any Person any compensation for soliciting any order to purchase any other securities of the Companydifferences.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (America First Mortgage Investments Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that:
(a) The Company will furnish reserve and keep available at all times, free of preemptive rights, such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws number of such jurisdictions (both domestic and foreign) as FBR may designate and to maintain such qualifications in effect so long as required shares of Common Stock for the distribution purpose of enabling the Company to satisfy any obligations to issue such shares of Common Stock upon conversion of the Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service shares of process under the laws of any such jurisdiction (except service of process Preferred Stock in accordance with respect to the offering and sale of the Shares). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.its terms;
(b) The Neither the Company nor any Affiliate will prepare sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Prospectus Securities Act) which could be integrated with the sale of the shares of Preferred Stock in a form approved by manner which would require the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) registration under the Securities Act 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 the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agree) to the Underwriters copies of the Prospectus shares of Preferred Stock;
(c) The Company will not solicit or agree to solicit any offer to buy or offer or sell the shares of Preferred Stock by means of any form of general solicitation or general advertising (as those terms are used in Regulation D) or in any manner involving a public offering within the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date meaning of the Registration StatementSection 4(2) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by of the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.;
(d) The Company will advise FBR promptly and, if requested not take any action prohibited by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective Regulation M under the Securities Act.Exchange Act in connection with the distribution of the shares of Preferred Stock contemplated hereby;
(e) The So long as any other shares of Common Stock shall then be so listed and so long as any shares of Preferred Stock are then outstanding, the Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement shall (i) copies use its reasonable best efforts to secure the listing of the shares of Common Stock issuable upon conversion of the Preferred Stock (collectively, the “Conversion Shares”) upon each national securities exchange and automated quotation system, if any, upon which shares of Common Stock are then listed (subject to official notice of issuance) and (ii) maintain, so long as any reports or other communications which the Company shares of Common Stock shall send to its stockholders or shall then be so listed, such listing of all Conversion Shares from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with issuable under the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities terms of the Preferred Stock. So long as any other shares of Common Stock shall then be so listed and so long as any shares of Preferred Stock are then outstanding, the Company is listedshall maintain the Common Stock’s authorization for quotation or listing on The New York Stock Exchange, the American Stock Exchange, Inc. or The Nasdaq National Market or SmallCap Market, as applicable. The Company shall pay all fees and (iv) such other information as FBR may reasonably request regarding the Company, expenses in each case as soon as such communication, document or information becomes available.connection with satisfying its obligations under this Section 6(e); and
(f) The Company will advise not, without the Underwriters promptly prior written consent of holders of 75% of the happening shares of Preferred Stock then outstanding, (i) issue any event known additional shares of Preferred Stock, (ii) create any other class or series of Capital Stock, the terms of which expressly provide that such class or series ranks senior to the Preferred Stock as to rights upon liquidation, winding-up, dividends or dissolution of the Company within the time during which a Prospectus relating to the Shares or (iii) create any class or series of Parity Stock (as such term is required to be delivered under the Securities Act which would require the making of any change defined in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the lawCertificate).
(g) The Company will make generally available agrees to use its stockholders reasonable best efforts to amend, subject to the approval thereof by the holders of (i) a majority of the shares of Common Stock then outstanding, voting as soon as practicablea separate class, and in the manner contemplated by Rule 158 (ii) a majority of the Securities Act but in any event not later than 15 months after shares of Preferred Stock then outstanding, voting as a separate class, the end Certificate of Incorporation of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after Company at the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) next meeting of the Securities Act stockholders of the Company to provide that the shares of Preferred Stock shall have the right to vote, on an as-converted basis, on matters that are put to vote of holders of shares of Common Stock of the Company with such number of votes as the Holders shall have had the right to receive had such Holder converted its Preferred Stock into Common Stock immediately prior to the event date, and Rule 158 thereunder and to provide that the Company will advise not, without the Underwriters prior written consent of holders of 75% of the shares of Preferred Stock then outstanding, voting as a separate class, undertake any of the actions set forth in writing when Section 6(f) above. In the event that such statement has been made availableamendments to the Certificate of Incorporation are not obtained at such meeting of stockholders, the Company agrees that it will pay to the Investor $250,000.
(h) The Company agrees that it will furnish pay to FBR a signed copy of CalPERs/PCG Corporate Partners, LLC the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably requestfees set forth in Schedule E hereof.
(i) The Company will apply In the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy event of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted offer made by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets any Affiliate of the Company, (iii) access to at the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security option of the Company, to facilitate the sale repurchase or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other acquire less than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions shares of any undertakings in Preferred Stock (a “Repurchase Offer”), the Registration Statement.
(s) The Company has been organized and operated in conformity with Investor shall be entitled to written notice of such Repurchase Offer no less than 15 days prior to the requirements for qualification and taxation effective date of the Company as a REIT under repurchase that is the Codesubject of the Repurchase Offer. Such notice shall state the price and all other terms and conditions upon which the Repurchase Offer is made, and the Company's proposed methods of operation will enable the Company Investor shall be entitled to continue to meet the requirements for qualification accept such Repurchase Offer and taxation as participate, on a REIT under the Code for subsequent taxable yearspro rata basis, in such repurchase.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Convertible Redeemable Exchangeable Preferred Stock Purchase Agreement (Webmd Corp /New/)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the Securities Act not later than 10:00 A.M. (New York City time) time period prescribed by law, on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will xx xdvise the Representative promptly and (if requested by the Representative) to confirm such advice in writing when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise FBR the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.;
(df) The Company will advise FBR to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act.Act or requested by the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR and, the Underwriters upon request, to each of a request from the other Underwriters Representative for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and furnish, at the Company's expense, to the Underwriters promptly such amendments or if it is necessary at any time supplements to amend or supplement the Prospectus as may be necessary to comply reflect any such change;
(i) to furnish promptly to the Representative such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith) as the Underwriters may reasonably request;
(j) to furnish to the Underwriters, not less than two business days before filing with the Commission, subsequent to the effective date of the Prospectus and during any law. If within the period of time during in which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist whichRegulations, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making a draft of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required document proposed to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement filed with the Commission and thereafter promptly furnishpursuant to Section 13, at 14, or 15(d) of the Company's own expense, Exchange Act;
(k) to apply the Underwriters and to dealers copies net proceeds of the sale of the Shares substantially in such quantities and at such locations as FBR may from time to time reasonably request accordance with its statements under the caption "Use of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, Proceeds" in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Prospectus;
(gl) The Company will to make generally available to its stockholders security holders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning quarter first occurring after the first anniversary of the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy Regulation, an earnings statement complying with the provisions of Section 11(a) of the Securities Act and (in form, at the option of the Company, complying with the provisions of Rule 158 thereunder and will advise of the Securities Act Regulations) covering a period of 12 months beginning on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act Regulation, provided, however, that the Company shall be deemed in compliance with this covenant with respect to the Underwriters in writing when such statement has been made available.the event the Company timely files its Annual Report on Form 10-K for the year ending December 31, 2002;
(hm) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause effect and maintain the listing of the Shares to be listed on the NYSE and to maintain such listing New York Stock Exchange and to file with the NYSE New York Stock Exchange all documents and notices required by the NYSE New York Stock Exchange of companies that have securities that are listed on the NYSE.New York Stock Exchange;
(mn) The to refrain during a period of 90 days from the date of this Agreement, without the prior written consent of the Representative which consent shall not be unreasonably withheld, from (i) offering, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise, except for (i) the issuance of Shares to be sold hereunder, (ii) the issuance of Common Shares in exchange for properties to be acquired by the Company from time to time, as described in the Form S-4 Registration Statement filed by the Company with the Commission on May 19, 1999, (iii) the issuance of Common Shares in exchange for securities to be issued in connection with the Gulf States transaction as described in the Prospectus, (iv) the issuance of securities convertible into Common Shares provided that the aggregate proceeds to the Company from such issuances shall not exceed $30,000,000, such securities shall not be convertible during the ninety-day period beginning on the date of this Agreement and such securities shall not be convertible at a price of less than $19.25 per share/unit, (v) the issuance of shares to employees of the Company as additional compensation in the ordinary course of business either under the Company's incentive compensation plan or pursuant to purchases by such employees under the Company's share purchase plan and (vi) the issuance of Common Shares pursuant to (x) the exercise of outstanding employee and trustee options or grant or issuance of options in the ordinary course under the Company's existing share option plans or (y) any Company dividend reinvestment or share purchase plan;
(o) the Company will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(p) the Company will use its best efforts to continue to meet the requirements to qualify as a real estate investment trust under the Code;
(q) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(r) the Company and keep accurate books and records reflecting the Subsidiaries will conduct their assets and affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act; and
(s) to maintain a system of internal accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.
(n) The Company will engage intervals and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection appropriate action is taken with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay respect to any Person any compensation for soliciting any order to purchase any other securities of the Companydifferences.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Entertainment Properties Trust)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriters:
(a) The Company will to furnish such information as may be required requested and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to maintain such qualification for more than 90 days from the date hereof (except that, upon the written request of the Representatives and at the expense of the Underwriters, the Company shall maintain such qualification for an additional period, not to exceed 180 days), or to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representatives and to file such Prospectus (or a terms sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree Agreement, and will to furnish promptly (and with respect to the initial delivery of such Prospectusthe prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be materially identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act Regulations;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to before amending or supplementing the Registration Statement becomes effective or the Prospectus, or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act.Act Regulations, to furnish to the Representatives a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR andthe Underwriters, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement and only to the extent unavailable through XXXXX (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD, American Stock Exchange or any securities exchange or the Nasdaq National Market and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, promptly to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company's expense, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters promptly such copies of the proposed amendment amendments or supplement supplements to the Prospectus as may be necessary to reflect any such change before filing any such amendment or supplement with the Commission Commission, and thereafter promptly furnish, to furnish at the Company's own expense, expense to the Underwriters and to dealers Underwriters, copies in such quantities and at such locations as FBR the Underwriters may from time to time reasonably request of an appropriate amendment request;
(i) to furnish promptly to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will to furnish to FBReach Representative, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (fh) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(k) The Company will to apply the net proceeds of the sale of the Shares in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, offeran earnings statement complying with the provisions of Section 11(a) of the Securities Act (in 16 form, contract to sellat the option of the Company, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations) covering a period of 45 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing, quotation or inclusion of the Shares on the American Stock Exchange or the New York Stock Exchange, or in the Nasdaq National Market (each an "Exchange") and to file with such Exchange all documents and notices required by the Exchange of companies that have securities that are listed on or included in such Exchange;
(n) to refrain during a period of 90 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option options outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lo) The Company will to not, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers affiliates (including costs of mailing and shipment), (ii) the issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares to prospective investors and the Underwriters' sales forces, including, without limitation, expenses associated with the production of road show slides and graphicsFBR) not to, 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the SharesCompany, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(p) the Company will maintain, at the Company's expense, a registrar and transfer agent for the Common Shares;
(q) The the Company will use its best efforts to continue to qualify as a REIT under the Code and to cause Arlington Capital to continue to be registered as a broker-dealer with the Commission, the NASD, the SIPC and other applicable state and other regulatory authorities;
(r) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(s) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity subject to regulation as an investment company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(u) to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(v) not to invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange ActAct of 1978, as amendedamended (the "CEA"), or otherwise complies with the Commodity Exchange Act, as amendedCEA. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amendedCEA, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.; and
(w) The Company will maintain such controls to file timely and other procedures, including, without limitation, those required by Sections 302 and 906 accurate reports with the Commission in accordance with Rule 463 of the Sarbanes-Oxley Securities Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files Regulations or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedany successor provision.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (FBR Asset Investment Corp/Va)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The to file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rules 430A, 430B or 430C under the Act, to file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act, if applicable; and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company will with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and to furnish copies of each Issuer Free Writing Prospectus, if any, (to the extent not previously delivered) to the Placement Agents prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Placement Agents may reasonably request;
(b) to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares; provided, provided however, that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR 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.;
(bc) The Company will prepare to make available to the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of Placement Agents, as soon as practicable after this Agreement or on such other day as the parties may mutually agree becomes effective, and will thereafter from time to time to furnish promptly (and with respect to the initial delivery of such ProspectusPlacement Agents, 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 the parties may mutually agree) to the Underwriters many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters any Placement Agent may reasonably request for request; in case delivery (whether physically or through compliance with Rule 172 under the purposes contemplated by Act or any similar rule) of a prospectus in connection with the Securities sale of the Shares is required after the nine-month period referred to in Section 10(a)(3) of the Act, which and after the Prospectus and any amendments or supplements thereto furnished time a post-effective amendment to the Underwriters will be identical Registration Statement is required pursuant to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Item 512(a) of Regulation S-T.K under the Act, the Company will promptly prepare, at its expense, 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;
(xd) Xhe if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its reasonable best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective as soon as possible, and the Company will advise FBR immediatelyyou promptly and, if requested by you, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance with such Rules);
(e) to advise you promptly, 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 Statement, the Prospectus or the Prospectus Time of Sale Information, or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission of any should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the Statement, to use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 its reasonable effort best efforts to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR you promptly of any proposal to amend or supplement the Registration Statement Statement, the Prospectus or the Prospectus including by Time of Sale Information, and to provide you and your counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR you shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) copies of any reports or other communications which the Company objection shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may not be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.unreasonable;
(f) The Company will to advise the Underwriters Placement Agents promptly of the happening of any event known to the Company within the time period during which a Prospectus relating to the Shares prospectus 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 would event could require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own ’s expense, to the Underwriters and Placement Agents promptly such amendments or supplements to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise Act) covering a period of twelve months beginning after the Underwriters in writing when date of this Agreement as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR a signed copy you two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.);
(i) The to furnish to you as early as practicable prior to the Time of Sale, 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 will and any 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;
(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.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.;
(k) The Company will whether or not sellthe transactions contemplated by this Agreement are consummated or this Agreement is terminated, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares reimburse the Placement Agents for expenses reasonably incurred by the Placement Agents in connection with the sale of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for incurred by the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) Company in connection with (i) the preparation and filing of the Registration Statement, the ProspectusProspectus and the Time of Sale Information, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters Placement Agents and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares and any fees payable in connection with the settlement systems of the Placement Agents, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Subscription Agreements, 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 Placement Agents 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 to for the UnderwritersPlacement Agents) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Placement Agents and to dealers, (ivv) any listing of the Shares on any securities exchange or qualification of the NYSE Shares for quotation on the Nasdaq and any registration thereof under the Exchange Act, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Placement Agents relating to FINRA matters, (vivii) 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' Placement Agents’ 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, (ix) the fees and other disbursements of counsel to the Placement Agents, and (viix) the performance of the Company's ’s other obligations hereunder.;
(l) to comply with Rule 433(g) under the Act;
(m) 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 Placement Agents, 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 Exchange Act and the rules and regulations of the Commission promulgated thereunder, 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 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, (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 offer and sale of the Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto) and the Prospectus, (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement (excluding the exhibits thereto) and the Prospectus and (D) the issuance of Common Stock pursuant to employee stock purchase plans described in 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 2(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;
(n) prior to the Closing Date, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets, or liabilities of the Company, or the offering of the Shares, without your prior consent, except as may be required by law, in which case the Company shall use its reasonable best efforts to allow the Placement Agents reasonable time to comment on such release or other communication in advance of such issuance;
(o) not, at any time at or after the execution of this Agreement, to 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 Prospectus or the Time of Sale Information;
(p) The the Company will not, and will cause its Subsidiaries not (i) to, take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Companydesigned, or which may cause or result inwill constitute, or which has constituted, or might in the future reasonably be expected to cause or result in, in the stabilization or manipulation of the price of any security of the Company, Company to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.;
(q) The Company will not invest in futures contracts, options to use its best efforts to cause the Shares to be listed for quotation on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject Nasdaq and to the Commodity Exchange Act, as amended, unless maintain such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.listing; and
(r) The Company will comply with all to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the provisions of any undertakings in Company, a registrar for the Registration StatementCommon Stock.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees the Operating Partnership, jointly and severally, agree with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares Securities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the SharesSecurities, provided that the Company shall not be required to qualify as a foreign corporation 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 SharesSecurities). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. p.m. (New York City time) ), on or before the second Business Day following the date of this Agreement August 16, 2017 or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. (p.m. New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act;
(xd) Xhe Company to prepare the Final Term Sheet containing a description of the Notes and the offering contemplated hereby, in a form approved by the Underwriters and contained in Schedule III of this Agreement, and will file such term sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any case not later than the time required by such rule;
(e) to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when any post-effective amendment to the Registration Statement becomes effective under the Securities Act;
(f) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(g) to comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(h) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Securities contemplated herein; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(di) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company willextent not available on EXXXX, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of the Securities, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fj) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares Securities (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act which which, in the judgment of the Company or in the reasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Registration Statement, the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Securities, or (iii) if it is necessary at any time to amend or supplement the Registration Statement, the Prospectus or the Disclosure Package to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Registration Statement, the Prospectus or the Disclosure Package will comply with the law.;
(gk) The Company will make generally available to its stockholders as soon as practicable, and in file promptly with the manner contemplated by Rule 158 of the Securities Act but in Commission any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant amendment or supplement to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.;
(il) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish prior to FBR, not less than two Business Days before a filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(m) during the period referred to in paragraph (fj) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a the manner and within the time periods required by the Exchange Act.;
(kn) The Company will to apply the net proceeds of the sale of the Notes in accordance with its statements under the caption “Use of Proceeds” in the Registration Statement, the Prospectus and the Disclosure Package;
(o) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act) covering a period of 45 12 months beginning after the effective date of the Registration Statement;
(p) at all times, reserve and keep available, free of preemptive rights, enough shares of Common Stock for the purpose of enabling the Company to satisfy its obligations to issue the Conversion Shares upon conversion of the Notes;
(q) to use its best efforts to maintain the listing of the Notes and the Conversion Shares on the NYSE and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE;
(r) to promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the completion of the distribution of the Securities within the meaning of the Securities Act and (ii) completion of the 60-day restricted period referred to in Section 5(t) hereof;
(s) to refrain, from the date hereof until 60 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares Notes to be sold hereunderhereunder (B) the issuance of the Conversion Shares, (iiC) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iiiD) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the 2014 Director Equity Plan or the 2016 Equity Incentive Plan referred to in the Registration Statement, the Prospectus and the Disclosure Package (E) the filing of any registration statement on Form S-8 (F) the filing of any pre-effective amendments to the Form S-3 shelf registration statement (333-219923) filed by the Company on August 11, 2017, or (G) the issuance of shares of Common Stock for a value not to exceed the amount set forth on Schedule V hereto, pursuant to those certain At-the-Market Issuance Sales Agreements, each dated October 3, 2016, among the Company's existing Discount Waiver, Direct Stock Purchase the Manager, Great Ajax Operating Partnership LP, Rxxxxxx Jxxxx & Associates, Inc., JMP Securities LLC and Dividend Reinvestment Plan.FBR Capital Markets & Co;
(lt) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the SharesSecurities, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Securities or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qu) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless to cause each officer and director of the Company is exempt from to furnish to the registration requirements Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree to the Commodity Exchange Act, lock-up provisions as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, set forth in Exhibit A;
(v) that the Company will not engage in any activities which might be subject continue to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter use its best efforts to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with meet the requirements for qualification and taxation of the Company to qualify as a REIT under the Code, and the Company's proposed methods of operation will enable ; and
(w) neither the Company to continue to meet nor any of the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or becomeSubsidiaries is and, at any time prior after giving effect to the expiration of three years after the date offering and sale of the AgreementSecurities, will be an "“investment company," ” or an entity “controlled” by an “investment company”, as such term is terms are defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company and the Partnership -------------------------------- hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares, ; provided that the Company -------- shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters Underwriter 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 City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to the Underwriters Underwriter copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Underwriter, 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 or the Prospectus or for additional information with respect thereto, (iii) iii)a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Underwriter shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.;
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the time period prescribed by the Securities Act not later than 10:00 A.M. (New York City time) on or before and the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree Securities Act Regulations, and will to furnish promptly (and with respect to the initial 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 the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in all material respects to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR immediatelythe Representatives promptly and (if requested by the Representatives) to confirm such advice in writing when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representatives promptly, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act.Act or requested by the Commission;
(eg) The to furnish promptly to the Underwriters such other publicly available information as the Underwriters may reasonably request regarding the Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters and its Subsidiaries for a period of five years from the date of this Agreement including (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, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares and (ii) copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents the NASD 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.exchange;
(fh) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in promptly such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement amendments or supplement supplements to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(gi) The Company will make generally available to its stockholders as soon as practicable, and in furnish promptly to the manner contemplated by Rule 158 Representatives such number of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibitsfiled therewith) as FBR the Underwriters may reasonably request.;
(ij) The Company will to furnish to the Underwriters, not less than two (2) business days before filing with the Commission, subsequent to the effective date of the Prospectus and during any period of time in which a prospectus relating to the Shares is required to be delivered under the Securities Act Regulations, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(k) to apply the net proceeds from of the sale of the Shares substantially in the manner set forth accordance with its statements under the caption "Use of Proceeds" in the Prospectus.;
(jl) The Company will furnish to FBRmake generally available to its security holders as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of twelve months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing of the Shares on the American Stock Exchange Act (or any other national securities exchange or quotation system) and during such period will to file with the American Stock Exchange all such documents in a manner and within the time periods notices required by the American Stock Exchange Act.of companies that have securities that are listed on the American Stock Exchange;
(kn) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to except in the Prospectus, ordinary course of business in connection with (iiix) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Incentive Share Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), 100,000 options) and (ivy) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing to refrain during a period of any shelf registration statement after thirty 120 days from the date hereofof the Prospectus, without the prior written consent of the Representatives, from (i) offering, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (viB) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted Common Shares issued by the Company upon the exercise of an option outstanding on the date hereof or upon the exercise of any option granted in the ordinary course of business as provided herein, (viiC) the issuance of common shares of Common Stock issued beneficial interest to the Advisor in connection with this offering pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Advisory Services Agreement or (D) the issuance of Warrant Shares to the holder of the Warrant upon the exercise of such Warrant;
(lo) The the Company will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(p) subject to its declaration of trust, the Company will use its best efforts to cause continue to meet the requirements to qualify as a real estate investment trust under the Code;
(q) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(r) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act;
(s) if at any time during the 30-day period after the execution of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be listed on materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the NYSE Prospectus) and after written notice from the Representatives advising the Company to maintain such listing and the effect set forth above, to file forthwith prepare, consult with the NYSE all documents Representatives concerning the substance of, and notices required by disseminate a press release or other public statement, in compliance with the NYSE of companies that have securities that are listed Securities Act, the Securities Act Regulations and other applicable laws and reasonably satisfactory to the Representatives, responding to or commenting on the NYSE.such rumor, publication or event;
(mt) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal to cause to be maintained a system of accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.
(n) The Company will engage intervals and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection appropriate action is taken with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay respect to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.differences; and
(u) The Company has retained Ernst & Young LLP as its qualified accountants to execute and qualified tax experts (i) deliver to test procedures FBR the Warrant Agreement and conduct annual compliance reviews designed to determine compliance comply with the REIT provisions terms of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the CodeWarrant Agreement.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (American Mortgage Acceptance Co)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, provided that the Company shall not be required to maintain such qualification for more than 90 days from the date hereof or to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the Securities Act not later than 10:00 A.M. (New York City time) time period prescribed by law, on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR immediatelythe Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representatives promptly, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.;
(f) The Company will advise before amending or supplementing the Underwriters promptly Registration Statement or the Prospectus, or, during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations, to furnish to the Representatives a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(g) to furnish to the Representatives and, upon request of the Representatives, to each of the other Underwriters, for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports publicly filed by the Company with the Commission, the NASD, New York Stock Exchange or any securities exchange and (iii) such other publicly available information as the Representatives may reasonably request regarding the Company and its Subsidiaries;
(h) to advise the Underwriters promptly during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in promptly such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement amendments or supplement supplements to the Prospectus so as may be necessary to reflect any such change; provided that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 requirements of the Securities Act but in any event this paragraph shall not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning extend beyond 90 days after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.this Agreement;
(hi) The Company will to furnish promptly to FBR the Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will to furnish to FBRthe Representatives, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (fh) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Securities Exchange Act and during such period will file all such documents in a manner and within of 1934, as amended (the time periods required by the "Exchange Act.");
(k) The Company will to apply the net proceeds of the sale of the Shares substantially in accordance with its statements under the caption "Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, offeran earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, contract to sellat the option of the Company, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations) covering a period of 45 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing of the Shares on the New York Stock Exchange and to file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities that are listed on the New York Stock Exchange;
(n) to refrain during a period of 180 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBR. The the Representatives, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option outstanding on the date hereof or upon the exercise of option pursuant to any management option plan described in the prospectus or pursuant to a dividend reinvestment plan adopted hereafter and referred to in the Prospectus, ;
(iiio) the granting of options pursuant to the Company's Second Amended Company shall not, and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will shall use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may could be reasonably likely to cause or result in, or which might could be reasonably likely to in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(p) the Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject use its best efforts to meet the Commodity Exchange Act, requirements to qualify as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to a real estate investment trust under the Company from the Commodities Futures Trading Commission.Code;
(r) The the Company will comply with all of the provisions of any undertakings in the Registration Statement.;
(s) The the Company has been organized and operated the Subsidiaries will conduct their affairs in conformity with such a manner so as to ensure that neither the requirements for qualification and taxation Company nor any Subsidiary will be an "investment company" or an entity subject to regulation as an investment company within the meaning of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.1940 Act;
(t) The Company will not be or become, if at any time prior during the 25-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the expiration of three years after effect set forth above, to forthwith prepare, consult with the date of Representatives concerning the Agreementsubstance of, an "investment company," as and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such term is defined in the Investment Company Act.rumor, publication or event; and
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) to test procedures and conduct annual compliance reviews designed to determine compliance transactions are executed in accordance with the REIT provisions of the Code and management's general or specific authorizations; (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far transactions are recorded as necessary to permit the continuance preparation of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company financial statements in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure conformity with generally accepted accounting principles and to ensure that material information relating maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the Company recorded accountability for assets is made known compared with the existing assets at reasonable intervals and appropriate action is taken with respect to them by others within those entities, particularly during the period in which such periodic reports are being preparedany differences.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentatives, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than March 17, 2008;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActAmerican Stock Exchange, (vvi) the filing, if any, 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, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
Company or the Partnership that are substantially similar to Common Shares, respectively, or (q2) The Company will not invest in futures contracts, options on futures contracts file or options on commodities unless cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company is exempt from or any of its affiliates of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares or other rights to purchase Common Shares or any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, for a period of 30 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for (1) the registration requirements of the Commodity Exchange ActShares and the sales to the Underwriters pursuant to this Agreement, as amended(2) the issuance of units of limited partnership interest by the Partnership in exchange for properties, or otherwise complies with and (3) the Commodity Exchange Actissuance of Common Shares in redemption of units of limited partnership interest; provided, as amended. In additionhowever, 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 will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act issues an earnings release or otherwise comply with that act material news or with an applicable no-action letter a material event relating to the Company from the Commodities Futures Trading Commission.
occurs; or (rb) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time 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(n) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three years (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(o) to use its best efforts to cause the Common Shares to be listed on the American Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), an "investment company," as such term is defined in the Investment Company Act.form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (iq) to test procedures and conduct annual compliance reviews designed to determine compliance with maintain a transfer agent and, if necessary under the REIT provisions jurisdiction of incorporation of the Code and Company, a registrar for the Common Shares;
(iir) to otherwise assist comply with Rule 433(d) under the Company in monitoring appropriate accounting systems Act (without reliance on Rule 164(b) under the Act) and procedures designed to determine compliance with Rule 433(g) under the REIT provisions of the Code.Act; and
(vs) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time prior to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files of purchase or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functionsany additional time of purchase, as appropriate the case may be, to allow timely decisions regarding required disclosure issue no press release or other communication directly or indirectly and to ensure that material information relating hold no press conferences with respect to the Company is made known to them by others within those entitiesor any Subsidiary, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions financial condition, results of operations, business, properties, assets, or liabilities of the Sarbanes-Oxley ActCompany or any Subsidiary, or the offering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The to file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rules 430A, 430B or 430C under the Act, to file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act, if applicable; and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company will with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and to furnish copies of each Issuer Free Writing Prospectus, if any, (to the extent not previously delivered) to the Placement Agent prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Placement Agent may reasonably request;
(b) to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares; provided, provided however, that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR 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.;
(bc) The Company will prepare to make available to the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of Placement Agent, as soon as practicable after this Agreement or on such other day as the parties may mutually agree becomes effective, and will thereafter from time to time to furnish promptly (and with respect to the initial delivery of such ProspectusPlacement Agent, 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 the parties may mutually agree) to the Underwriters many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Placement Agent may reasonably request for request; in case delivery (whether physically or through compliance with Rule 172 under the purposes contemplated by Act or any similar rule) of a prospectus in connection with the Securities sale of the Shares is required after the nine-month period referred to in Section 10(a)(3) of the Act, which and after the Prospectus and any amendments or supplements thereto furnished time a post-effective amendment to the Underwriters will be identical Registration Statement is required pursuant to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Item 512(a) of Regulation S-T.K under the Act, the Company will promptly prepare, at its expense, 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;
(xd) Xhe if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its reasonable best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective as soon as possible, and the Company will advise FBR immediatelyyou promptly and, if requested by you, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance with such Rules);
(e) to advise you promptly, 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 Statement, the Prospectus or the Prospectus Time of Sale Information, or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission of any should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the Statement, to use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 its reasonable effort best efforts to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR you promptly of any proposal to amend or supplement the Registration Statement Statement, the Prospectus or the Prospectus including by Time of Sale Information, and to provide you and your counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR you shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) copies of any reports or other communications which the Company objection shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may not be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.unreasonable;
(f) The Company will to advise the Underwriters Placement Agent promptly of the happening of any event known to the Company within the time period during which a Prospectus relating to the Shares prospectus 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 would event could require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own ’s expense, to the Underwriters and Placement Agent promptly such amendments or supplements to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise Act) covering a period of twelve months beginning after the Underwriters in writing when date of this Agreement as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR a signed copy you two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.);
(i) The to furnish to you as early as practicable prior to the Time of Sale, 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 will and any 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;
(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.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.;
(k) The Company will whether or not sellthe transactions contemplated by this Agreement are consummated or this Agreement is terminated, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares reimburse the Placement Agent for expenses reasonably incurred by the Placement Agent in connection with the sale of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the ProspectusProspectus and the Time of Sale Information, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters Placement Agent and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares and any fees payable in connection with the settlement systems of the Placement Agent, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Subscription Agreements, 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 Placement Agent 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 to for the UnderwritersPlacement Agent) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Placement Agent and to dealers, (ivv) any listing of the Shares on any securities exchange or qualification of the NYSE Shares for quotation on the Nasdaq and any registration thereof under the Exchange Act, (vvi) the filing, if any, 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 Placement Agent relating to NASD matters, (vivii) 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' Placement Agent’s sales forcesforce, 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, (ix) the fees and other disbursements of counsel to the Placement Agent up to $250,000, and (viix) the performance of the Company's ’s other obligations hereunder.;
(l) to comply with Rule 433(g) under the Act;
(m) 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 Placement Agent, 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 Exchange Act and the rules and regulations of the Commission promulgated thereunder, with respect to, any Ordinary Shares or securities convertible into or exchangeable or exercisable for Ordinary Shares or warrants or other rights to purchase Ordinary Shares or any other securities of the Company that are substantially similar to Ordinary Shares, (ii) file or cause to become effective a registration statement under the Act relating to the offer and sale of any Ordinary Shares or securities convertible into or exercisable or exchangeable for Ordinary Shares or warrants or other rights to purchase Ordinary Shares or any other securities of the Company that are substantially similar to Ordinary Shares, (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 Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares, or warrants or other rights to purchase Ordinary Shares or any such securities, whether any such transaction is to be settled by delivery of 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 as contemplated by this Agreement, (B) issuances of Ordinary Shares upon the exercise of options or warrants or the conversion of a security disclosed as outstanding in the Registration Statement (excluding the exhibits thereto) and the Prospectus, (C) the issuance of employee stock options not exercisable during the Lock-Up Period and other stock based awards that cannot be sold during the Lock-Up Period, (D) the issuance of any Ordinary Shares in connection with (or the financing of) any product acquisition or similar arrangement, (E) the issuance of Ordinary Shares pursuant to employee stock purchase plans described in the Registration Statement and the Prospectus; provided, that, in the event this Agreement is terminated prior to consummation of the sale of the Shares, this provision shall be of no force or effect after the date of termination, (F) the issuance of Ordinary Shares to existing shareholders of the Company pursuant to the rights offering described in the Prospectus or the Time of Sale Information, and (G) the issuance of up to 1,000,000 Ordinary Shares to Medigen under the terms of a settlement agreement with the Company;
(n) prior to the Closing Date, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets, or liabilities of the Company, or the offering of the Shares, without your prior consent, except as may be required by law, in which case the Company shall use its reasonable best efforts to allow the Placement Agent reasonable time to comment on such release or other communication in advance of such issuance;
(o) not, at any time at or after the execution of this Agreement, to 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 Prospectus or the Time of Sale Information;
(p) The the Company will not, and will cause its Subsidiaries not (i) to, take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Companydesigned, or which may cause or result inwill constitute, or which has constituted, or might in the future reasonably be expected to cause or result in, in the stabilization or manipulation of the price of any security of the Company, Company to facilitate the sale or resale of any the Shares;
(q) to use its best efforts to cause the Shares to be listed for quotation on the Nasdaq and to maintain such listing;
(r) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Ordinary Shares; and
(s) to, immediately after the issue of the Shares, give a notice to ASX in accordance with sub-sections 708A(5)(e) and (ii6) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree Corporations Act and at all times to pay take all other steps required to any Person any compensation for soliciting any order to purchase ensure that the Shares and any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts issued or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject sold pursuant to the Commodity Exchange Act, as amended, unless such activities Registration Statement are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required able to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the freely traded on ASX from their time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedof issue.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Placement Agency Agreement (Progen Pharmaceuticals LTD)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatJoint Sponsors, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers and the International Underwriters:
(a) The Company will furnish to take such information action as may be required by the Joint Global Coordinators and otherwise will cooperate in qualifying the Joint Sponsors to qualify the Offer Shares for offering and sale under the securities or blue sky laws Laws of such jurisdictions (both domestic and foreign) as FBR the Joint Global Coordinators or the Joint Sponsors may designate and comply with such Laws so as to maintain permit the continuance of sales and dealings therein in such qualifications in effect so jurisdictions for as long as required for may be necessary to complete the distribution of the Offer Shares, provided provided, however, that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of in any such jurisdiction (except service of process with respect to the offering and sale of the Offer Shares). The Company will ; and to promptly advise FBR the Joint Global Coordinators and the Joint Sponsors of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offer Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will to (A) promptly prepare each of the Pricing Disclosure Package and Prospectus in a form approved by the Underwriters Joint Global Coordinators and the Joint Sponsors and to file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, (B) advise the Joint Global Coordinators and the Joint Sponsors, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish the Joint Global Coordinators and the Joint Sponsors with copies thereof, (C) file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act, and (D) make no further amendment or supplement to to the Registration Statement or the Prospectus prior to the last Time of Delivery which shall be disapproved by the Joint Global Coordinators and the Joint Sponsors promptly after reasonable notice thereof;
(c) to furnish or make available without charge to the Joint Global Coordinators and the International Underwriters, prior to [l] [a.m./p.m.], [Hong Kong/New York City City] time) , on or before the second Business Day following business day next succeeding the date of this Agreement or on such other day as the parties may mutually agree hereof and will furnish promptly (thereafter from time to time, written and with respect to the initial 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 the parties may mutually agree) to the Underwriters electronic copies of the Pricing Disclosure Package and the Prospectus (and of each amendment or of the Prospectus as amended or supplemented supplement thereto if the Company shall have made any amendments such amendment or supplements thereto after the effective date of the Registration Statementsupplement) in such quantities and at in such locations jurisdictions as the Joint Global Coordinators or the International Underwriters may from time to time reasonably request for the purposes contemplated by the Securities Actrequest, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) the initiation, threatening or contemplation of any proceedings for any of such purposes and, if the Commission delivery of a prospectus (or any other governmental agency or authority should issue any such orderin lieu thereof, the Company will make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object notice referred to in writing.
(dRule 173(a) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish is required at any time prior to FBR and, upon request, to each the expiration of nine months after the time of issue of the other Underwriters for Prospectus in connection with the offering or sale of the Offer Shares and if at such time any event shall have occurred as a period result of five years from the date of this Agreement (i) copies of any reports or other communications which the Company shall send to its stockholders Prospectus as then amended or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which supplemented would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or or, if for any other reason it is shall be necessary at any time during such same period to amend or supplement the Prospectus in order to comply with the Securities Act, to notify you and upon your request to prepare and furnish without charge to each International Underwriter and to any law. If within the dealer in securities as many written and electronic copies as you may from time during which to time reasonably request of an amended Prospectus or a Prospectus relating supplement to the Shares Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to be delivered deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Act) in connection with sales of any of the Offer Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such International Underwriter, to prepare and deliver to such Internaitonal Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) procuring, subject to any waiver granted by the SEHK, that no connected person (as defined in the Listing Rules) of the Company will itself (or through a company controlled by it), apply to purchase International Offer Shares either in its own name or through nominees unless permitted to do so under the Listing Rules, and if the Company shall become aware of any application or indication of interest for International Offer Shares by any connected person, controlled company or nominee, it shall forthwith notify the Joint Sponsors and the Joint Global Coordinators (on behalf of the International Underwriters);
(e) to advise the Joint Global Coordinators and the Joint Sponsors promptly if at any time prior to the later of the Option Expiration Date (as defined below) and the date on which the Joint Global Coordinators notify the Company that the distribution of the International Offer Shares is complete:
(A) any event shall occur or condition any circumstance shall exist whichwhich renders or could render untrue, inaccurate or misleading in the reasonable opinion any respect any of the Companyrepresentations and warranties and other statements of the Company herein; any event shall occur or any circumstance shall exist which give rise or could give rise to a claim under any of the indemnities (to the extent applicable) as contained in, FBR or their respective counselgiven pursuant to, would this Agreement; or
(B) any event shall occur or any circumstance shall exist which requires or could require the making of any change in to the Registration Statement, the Pricing Disclosure Package, or the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus Registration Statement, the Pricing Disclosure Package, or the Prospectus, or any individual Supplemental Offering Material (as used herein, “Supplemental Offering Material” means any written communication (within the meaning of the Securities Act) prepared by or on behalf of the Company, or used or referred to by the Company, that constitutes an offer to sell or a solicitation of an offer to buy the International Offer Shares, including, without limitation, all information, materials and documents issued, given or presented in any of the investor presentations and/or roadshow presentations conducted by or on behalf of the Company in connection with the Global Offering that constitute such written communication and any Testing-the-Waters Communication) when considered together with the Registration Statement, the Pricing Disclosure Package, or the Prospectus, would not include an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances made when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the CompanyPricing Disclosure Package, or which may cause or result inthe Prospectus was delivered, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.misleading; or
Appears in 1 contract
Samples: International Underwriting Agreement (Li Auto Inc.)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T promulgated by the Commission;
(xd) Xhe Company will to advise FBR the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent (which consent shall not be unreasonably withheld) of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR their Representative shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange (provided that the filing of same with XXXXX or any successor system of the Commission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder) and (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 FBR the Underwriters may reasonably request regarding the CompanyCompany and the Subsidiaries, in each case as soon as such communication, document or which information becomes available.the Underwriters and their Representative will keep confidential;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package in order to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated reasonable judgment of the Company or the Representative, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement Representative to the filing (which need consent may not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.unreasonably withheld);
(hl) The Company will to furnish promptly to FBR each Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representative may reasonably request.;
(im) The Company will to apply the net proceeds from of the sale of the Shares in the manner set forth accordance with its statements under the caption "“Use of Proceeds" ” in the Prospectus.Prospectus and the Disclosure Package;
(jn) The Company will furnish to FBRmake generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Exchange Securities Act and during such period will file all such documents (in a manner and within form, at the time periods required by option of the Exchange Act.
(kCompany, complying with the provisions of Rule 158 of the Securities Act Regulations,) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for covering a period of 45 12 months beginning after the effective date of the Registration Statement;
(o) to use its best efforts to maintain the listing of the Shares on The Nasdaq Global Market and to file with The Nasdaq Global Market all documents and notices required by The Nasdaq Global Market of companies that have securities that are traded on The Nasdaq Global Market;
(p) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, The Nasdaq Global Market shall have approved the Shares for listing, it will be in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that are then in effect and, with respect to other applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules not currently in effect, the Company will take commercially reasonable steps to ensure that it will be in compliance with such requirements upon and after the effectiveness thereof;
(q) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, it will be in compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder or implementing the provisions thereof that are then in effect and, with respect to other applicable provisions of the Xxxxxxxx-Xxxxx Act not currently in effect, the Company will take commercially reasonable steps to ensure that it will be in compliance with such requirements upon and after the effectiveness thereof;
(r) to engage and maintain, at its expense, a registrar and transfer agent for the Shares;
(s) to refrain, from the date hereof until 180 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representative, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, or (iiB) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, Prospectus or issued under the Company’s 2013 Equity Incentive Plan;
(iiit) to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the granting completion of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable distribution of the Shares within the Lock-Up Period), (iv) the payment in stock to directors meaning of the Company Securities Act and (ii) completion of a portion of their annual or other directors fees, (vthe 180-day restricted period referred to in Section 5(s) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lu) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qv) The Company to cause each of the persons listed on Schedule IV hereto to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B hereto (“Lock-Up Letter Agreement”);
(w) to use its best efforts to ensure that the Directed Shares will not invest be restricted from sale, transfer, assignment, pledge or hypothecation for a period of three months after the date of the Prospectus in futures contractsaccordance with FINRA’s Free-Riding and Withholding Interpretation (IM-21 10-1); and to comply with all applicable securities and other applicable laws, options on futures contracts or options on commodities unless rules and regulations in each jurisdiction in which the Reserved Shares are offered in connection with the Directed Share Program;
(x) that the Company shall obtain or maintain, as appropriate, directors and Officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion; and
(y) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Representative advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActRepresentative concerning the substance of, as amended. In additionand disseminate a press release or other public statement, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActRepresentative, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event;
(rz) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.;
Appears in 1 contract
Samples: Underwriting Agreement (ExOne Co)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters 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 City timewithin the time periods required under Rule 424(b) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T promulgated by the Commission;
(xd) Xhe Company will to advise FBR immediatelythe Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent (which consent shall not be unreasonably withheld) of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representative promptly, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange (provided that the filing of same with EXXXX or any successor system of the Commission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder) and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package in order to comply with any law. If within the time during which a Prospectus relating law applicable to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion offer and sale of the CompanyShares as contemplated by this Agreement and, FBR or their respective counselduring such time, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with any law applicable to the law.offer and sale of the Shares as contemplated by this Agreement;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated reasonable judgment of the Company or the Representative, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement Representative to the filing (which need consent may not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.unreasonably withheld);
(hl) The Company will to furnish promptly to FBR the Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representative may reasonably request.;
(im) The Company will to apply the net proceeds from of the sale of the Shares in the manner set forth accordance with its statements under the caption "“Use of Proceeds" ” in the Prospectus.Prospectus and the Disclosure Package;
(jn) The Company will furnish to FBRmake generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Exchange Securities Act and during such period will file all such documents (in a manner and within form, at the time periods required by option of the Exchange Act.
(kCompany, complying with the provisions of Rule 158 of the Securities Act Regulations,) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for covering a period of 45 days 12 months beginning after the effective date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Registration Statement;
(lo) The Company will to use its best efforts to cause maintain the listing of the Shares to be listed on the NYSE and to maintain such listing The Nasdaq Global Market and to file with the NYSE The Nasdaq Global Market all documents and notices required by the NYSE The Nasdaq Global Market of companies that have securities that are listed traded on the NYSE.The Nasdaq Global Market;
(mp) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, The Company Nasdaq Global Market shall have approved the Shares for listing; subject to applicable cure periods, it will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance be in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that (i) transactions are executed then in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.effect;
(nq) The Company will engage and to maintain, at its expense, a registrar and transfer agent for the Shares.;
(or) The Company will pay all expensesto refrain, fees and taxes (other than any transfer taxes and fees and disbursements from the date hereof until 90 days after the date of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, and without the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the issuance, sale and delivery prior written consent of the Shares by the CompanyRepresentative, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) takefrom, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock, any other equity security of the Company or any of its Subsidiaries or any securities convertible into or exercisable or exchangeable for Common Stock, or other such equity security (whether the Company now owns or hereafter acquires such Common Stock or other security) (“Relevant Securities”), filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap, derivative or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of any Relevant Security, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Relevant Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the sale of shares of Common Stock by the Company to the Underwriters; the issuance of shares of Common Stock by the Company upon the exercise of stock options or the issuance of securities by the Company pursuant to employee benefit plans, employment agreements, stock option plans or other director or employee compensation plans, including its 2010 Employee Stock Ownership Plan, 2005 Stock Option Plan, 2005 Recognition and Retention Plan, 2008 Executive Deferred Compensation Plan, 2010 Employee Stock Purchase Plan, 2010 Director Stock Purchase Plan, 2005 Director Deferred Fee Plan for Equity and 2009 Atlantic Coast Bank Director Emeritus Plan;
(s) not to, and to use its best efforts to cause its officers, directors and affiliates not to, directly or indirectly prior to termination of the underwriting syndicate offering contemplated by this Agreement, (i) take any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone any Person compensation (other than as contemplated by the provisions hereofUnderwriters) any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person (other than the Underwriters) any compensation for soliciting any order to purchase any other securities of the Company.;
(qt) The Company to cause each of the persons listed on Schedule IV hereto to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto (“Lock-Up Letter Agreement”);
(u) to use its best efforts to ensure that the Reserved Shares will not invest be restricted from sale, transfer, assignment, pledge or hypothecation for a period of three months after the date of the Prospectus in futures contractsaccordance with FINRA’s Free-Riding and Withholding Interpretation (IM-21 10-1); and to comply with all applicable securities and other applicable laws, options on futures contracts or options on commodities unless rules and regulations in each jurisdiction in which the Reserved Shares are offered in connection with the Directed Share Program;
(v) that the Company is exempt and its Subsidiaries shall obtain or maintain, as appropriate, directors and officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion;
(w) if, at any time during the 90-day period after the date of the Prospectus, any event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative would have a Material Adverse Effect on the market price of the Common Stock (regardless of whether such event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and, at the sole discretion of the Commodity Exchange ActCompany, as amended, disseminate a press release or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject other public statement reasonably satisfactory to the Commodity Exchange Act, as amended, unless Representative responding to or commenting on such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event; and
(rx) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Atlantic Coast Financial CORP)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale sale, or establishing an exemption from such qualification, under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications or exemptions in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation corporation, to subject itself to 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably practicable and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. 12:00 p.m. (New York City time) ), on or before the second Business Day business day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. 3:00 p.m. (New York City time) on or before the second Business Day business day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The reasonably practicable, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement of which the Company will is aware, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters Representatives for a period of five two years from the date of this Agreement Agreement, unless made available to the public on XXXXX or any successor system, (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents FINRA 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.exchange;
(fi) The Company will to advise the Underwriters Representatives promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated reasonable judgment of the Company or the Representatives, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end of the Company's current fiscal quarterRegistration Statement, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which any Preliminary Prospectus, the Prospectus Supplement is filed pursuant or any Issuer Free Writing Prospectus, to Rule 424(b) under furnish a copy thereof to the Securities Act that shall satisfy Representatives and counsel for the provisions of Section 11(aUnderwriters and obtain the consent (not to be unreasonably withheld or delayed) of the Securities Act and Rule 158 thereunder and will advise Representatives to the Underwriters in writing when such statement has been made available.filing;
(hl) The Company will to furnish promptly to FBR the Representatives each a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.;
(im) The Company will to apply the net proceeds from of the sale of the Shares by the Company in the manner set forth accordance with its statements under the caption "“Use of Proceeds" ” in the Prospectus.Prospectus and the Disclosure Package;
(jn) The Company will furnish to FBRmake generally available to its security holders and to the Representatives as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Exchange Securities Act and during such period will file all such documents (in a manner and within form, at the time periods required by option of the Exchange Act.
(kCompany, complying with the provisions of Rule 158 of the Securities Act Regulations,) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for covering a period of 45 days 12 months beginning after the effective date hereof of the Registration Statement;
(o) to use its commercially reasonable efforts to maintain the "Lock-Up Period"), without the prior written consent listing of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(mp) The to promptly notify the Representatives if the Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that ceases to be an Emerging Growth Company at any time prior to the later of (i) transactions are executed in accordance with management's authorization, the completion of the distribution of the Shares within the meaning of the Securities Act and (ii) transactions are recorded as necessary to permit the preparation completion of the Company's consolidated financial statements and 180-day restricted period referred to maintain accountability for the assets of the Company, (iiiin Section 5(r) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.hereof;
(nq) The Company will to engage and maintain, at its expense, a registrar and transfer agent for the Shares.;
(or) The Company will pay all expensesto refrain, fees and taxes from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the Representatives, from, directly or indirectly, (other than i) offering, pledging, selling, contracting to sell, selling any transfer taxes and fees and disbursements of counsel option or contract to purchase, purchasing any option or contract to sell, granting any option for the Underwriterssale of, except as set forth or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by the Company at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under Section 5 hereof the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (iiii) or (ivii) below) above is to be settled by delivery of Common Stock or such other securities, in connection with cash or otherwise. The foregoing sentence shall not apply to (iA) the preparation and filing Shares to be sold hereunder, (B) issuances of equity-based awards pursuant to the Company’s equity incentive plan described in the Registration Statement, the Prospectus and the Disclosure Package, to the extent such awards do not vest within 180 days after the date of 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (ivC) any listing shares of the Shares on the NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 Common Stock issued by the Company upon the exercise of an option or the vesting of any restricted stock units outstanding on the date hereof and referred to in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultantsProspectus;
(s) not to, and (vii) the performance of the Company's other obligations hereunder.
(p) The Company will to use its commercially reasonable efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company;
(t) to the extent not previously entered into with a Representative, to cause each officer and director of the Company to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period from the date hereof until 180 days after the date of the Prospectus, without the prior written consent of the Representatives on behalf of the Underwriters; if the Representatives, in its sole discretion, agrees to release or waive the restrictions set forth in Section 5(r) or a lock-up letter described in this Section 5(t) hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver substantially in the form of Exhibit C hereto at least three business days 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 D hereto through a major news service at least two business days before the effective date of the release or waiver.
(qu) The Company will not invest in futures contractsif, options on futures contracts at any time during the 90-day period after the date of the Prospectus, any rumor, publication or options on commodities unless event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Representatives advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActRepresentatives concerning the substance of, as amended. In additionand disseminate a press release or other public statement, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActRepresentatives, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event;
(rv) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.; and
(sw) The Company has been organized and operated in conformity with upon the requirements for qualification and taxation reasonable request of the Company as a REIT under the CodeRepresentatives, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or becomedeliver, at any time prior to the expiration of three years after the date of the Agreementwithout charge, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions Representatives, two signed copies of the Code Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions each Underwriter (A) a conformed copy of the Code.
Registration Statement as originally filed and each amendment thereto (vwithout exhibits) The Company will comply with and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all requirements imposed upon it amendments and supplements thereto and documents incorporated by reference therein and each Issuer Free Writing Prospectus). As used herein, the Securities Act and term “Prospectus Delivery Period” means such period of time after the Exchange Act as from time to time in force, so far as necessary to permit first date of the continuance public offering of sales of, or dealings in, the Shares as contemplated by in the provisions hereof and opinion of counsel for the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those Underwriters a prospectus relating to the Shares is required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information law to be delivered (or required to be disclosed by the Company in the reports that it files or submits delivered but for Rule 172 under the Exchange Act is recorded, processed, summarized and reported within the time periods specified Securities Act) in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply connection with all effective applicable provisions sales of the Sarbanes-Oxley ActShares by any Underwriter or dealer.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR you may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will to prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agree) make available to the Underwriters in New York City, as soon as practicable, 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 the 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 any Underwriter is required to deliver a prospectus within the nine-month period referred to in Section 10(a)(3) of the Act in connection with the sale of the Shares, the Company will prepare promptly upon request, but at the expense of such Underwriter, such amendment or amendments to the Registration Statement and such prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such advice in writing, when any post-effective amendment thereto becomes effective and when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Prospectus and any amendments or supplements thereto furnished Company agrees to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.file in a timely manner under such Rule);
(xd) Xhe Company will to advise FBR immediatelyyou promptly, 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 or the Prospectus or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 orderenter a stop order suspending the effectiveness of the Registration Statement, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference reference, and to file no such amendment or supplement to which FBR you shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act within the applicable time period prescribed for such filing by Rule 462(b), and the Company willshall, promptly upon requestat the time of such filing, either pay to the Commission the filing fee for such registration statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
(f) to furnish to FBR you and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR you may reasonably request regarding the CompanyCompany or its Subsidiaries, in each case as soon as such communicationreports, document communications, documents or information becomes available.;
(fg) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference thereinreference, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary and, during such time, to prepare promptly, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company’s expense, FBR such amendments or their respective counsel, would require the making of any change in the supplements to such Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to as may be stated therein or necessary to make the statements therein, in the light reflect any such change and to furnish you a copy of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Commission;
(gh) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) of the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than 60 days after the close of such twelve-month period;
(hi) The Company will to furnish to FBR its stockholders within 120 days after the end of each fiscal year, for so long as the Company shall not be required to file annual and periodic reports with the Commission under the Exchange Act, audited financial statements (including a balance sheet and statements of income, stockholders’ equity and of cash flow of the Company for such fiscal year), accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants;
(j) to furnish to you three signed copy copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of sufficient conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.for distribution of a copy to each of the other Underwriters;
(ik) The to furnish to you as early as practicable prior to the Closing Date and the Option Closing Date, 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 will and its 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;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed to comply with all provisions of any undertakings contained in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.Registration Statement;
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, Underwriters except as set forth under Section 5 hereof or in clause and (iii) or ), (iv) and (vi) below) in connection with (i) the preparation and filing of the Registration Statement, any 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 issuanceregistration, issue, sale and delivery of the Shares by the CompanyShares, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any powers of attorney, any custody 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 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 to 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, (ivv) any listing of the Shares on any securities exchange or qualification of the NYSE Shares for quotation on NASDAQ and any registration thereof under the Exchange Act, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASD, (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 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, NASD and (vii) the performance of the Company's ’s other obligations hereunder.;
(o) to furnish to you, subject to the requirements of Regulation FD under the Exchange Act, before filing with the Commission subsequent to the effective date of the Registration Statement and for so long as a prospectus is required to be delivered in connection with the offering or delivery of the Shares, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(p) The Company will not (i) taketo sell, offer or agree to sell, contract to sell, grant any option to sell or otherwise dispose of, directly or indirectly, prior any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to termination purchase Common Stock or any other securities of the underwriting syndicate contemplated by Company that are substantially similar to Common Stock or permit the registration under the Act of any shares of Common Stock, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement or the Equity Distribution Agreement, dated May 5, 2003, between the Company and UBS Securities LLC, as amended, and any replacement or successor Equity Distribution Agreement between the Company and UBS Securities LLC, and except for options granted pursuant to employee benefit plans, which plans are existing on the date of this Agreement, and for shares of Common Stock issuable upon the exercise of such outstanding options for a period of 90 days after the date hereof, without the prior written consent of UBS Securities LLC, on behalf of the Underwriters;
(q) to use its best efforts to cause the Shares to be listed on the NYSE; and
(r) not at any time, directly or indirectly, to take any action designed to stabilize or manipulate the price of any security of the Companyintended, or which may might reasonably be expected, to cause or result in, or which might in the future reasonably be expected to cause or result inwill constitute, the stabilization or manipulation of the price of any security the shares of the Company, Common Stock to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will ; and not invest in futures contracts, options on futures contracts or options on commodities commodities, unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amendedamended (the “Commodity Act”), or otherwise complies with the Commodity Exchange Act, as amended. In addition, the The Company will not engage in any activities which might be subject to bearing on the Commodity Exchange Act, as amended, unless such activities are exempt from that act the Commodity Act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Commodity Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Impac Mortgage Holdings Inc)
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. 4:00 p.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. 4:00 p.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentatives, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares or other rights to purchase Common Shares or any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, for a period of 30 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for (1) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (2) the issuance of units of limited partnership interest by the Partnership in exchange for properties, (3) the issuance of Common Shares in redemption of units of limited partnership interest, and (4) the issuance of Common Shares or options to purchase Common Shares or Common Shares upon the exercise of options outstanding as of that date of Pre-Pricing Prospectus pursuant to any dividend reinvestment plan, equity incentive, stock option, stock bonus, stock purchase or other stock plan or arrangement described in the Prospectus, but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during the Lock-Up Period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives); 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(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; for the avoidance of doubt, this Section 4(n) shall not prohibit or restrict in any way any offering and sale by the Company of preferred shares of beneficial interest that are not convertible into Common Shares and are otherwise similar to the Company.’s Series A Preferred Shares or Series B Preferred Shares;
(o) to use its best efforts to cause the Common Shares to be listed on the New York Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Common Shares;
(r) The Company will to comply with all of Rule 433(d) under the provisions of any undertakings in Act (without reliance on Rule 164(b) under the Registration Statement.Act) and with Rule 433(g) under the Act;
(s) The 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 has been organized and operated in conformity with or any Subsidiary, the requirements for qualification and taxation financial condition, results of operations, business, properties, assets, or liabilities of the Company as a REIT under or any Subsidiary, or the Codeoffering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business; and
(t) to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2012 and for subsequent its future taxable years.
(t) The Company will not be or become, at any time prior to unless the expiration Board of three years after Trustees determines that it is no longer in the date best interests of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedso qualified.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees the Operating Partnership, jointly and severally, agree with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares Securities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the SharesSecurities, provided that the Company shall not be required to qualify as a foreign corporation 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 SharesSecurities). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. p.m. (New York City time) ), on or before the second Business Day following the date of this Agreement April 21, 2017 or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. (p.m. New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act;
(xd) Xhe Company to prepare the Final Term Sheet containing a description of the Notes and the offering contemplated hereby, in a form approved by the Underwriters and contained in Schedule III of this Agreement, and will file such term sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any case not later than the time required by such rule;
(e) to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when any post-effective amendment to the Registration Statement becomes effective under the Securities Act;
(f) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(g) to comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(h) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Securities contemplated herein; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(di) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company willextent not available on EXXXX, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of the Securities, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fj) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares Securities (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act which which, in the judgment of the Company or in the reasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Registration Statement, the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Securities, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gk) The Company will make generally available to its stockholders as soon as practicable, and in file promptly with the manner contemplated by Rule 158 of the Securities Act but in Commission any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant amendment or supplement to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.;
(il) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish prior to FBR, not less than two Business Days before a filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(m) during the period referred to in paragraph (fj) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a the manner and within the time periods required by the Exchange Act.;
(kn) The Company will to apply the net proceeds of the sale of the Notes in accordance with its statements under the caption “Use of Proceeds” in the Registration Statement, the Prospectus and the Disclosure Package;
(o) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act) covering a period of 45 12 months beginning after the effective date of the Registration Statement;
(p) at all times, reserve and keep available, free of preemptive rights, enough shares of Common Stock for the purpose of enabling the Company to satisfy its obligations to issue the Conversion Shares upon conversion of the Notes;
(q) to use its best efforts to maintain the listing of the Conversion Shares on the NYSE and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE;
(r) to use its best efforts to effect the listing of the Notes on the NYSE list within 30 days of the Closing Time;
(s) to promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the completion of the distribution of the Securities within the meaning of the Securities Act and (ii) completion of the 60-day restricted period referred to in Section 5(t) hereof;
(t) to refrain, from the date hereof until 60 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares Notes to be sold hereunderhereunder (B) the issuance of the Conversion Shares, (iiC) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iiiD) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver2014 Director Equity Plan or the 2016 Equity Incentive Plan referred to in the Registration Statement, Direct Stock Purchase the General Disclosure Package and Dividend Reinvestment Plan.the Prospectus or (E) the filing of any registration statement on Form S-8;
(lu) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the SharesSecurities, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Securities or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qv) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless to cause each officer and director of the Company is exempt from to furnish to the registration requirements Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree to the Commodity Exchange Act, lock-up provisions as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, set forth in Exhibit A;
(w) that the Company will not engage in any activities which might be subject continue to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter use its best efforts to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with meet the requirements for qualification and taxation of the Company to qualify as a REIT under the Code, and the Company's proposed methods of operation will enable ; and
(x) neither the Company to continue to meet nor any of the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or becomeSubsidiaries is and, at any time prior after giving effect to the expiration of three years after the date offering and sale of the AgreementSecurities, will be an "“investment company," ” or an entity “controlled” by an “investment company”, as such term is terms are defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives (not to be unreasonably withheld, conditioned or delayed) prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five two years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents FINRA or reports filed with any national securities exchange on which (provided that the filing of same with XXXXX or any class of securities successor system of the Company is listedCommission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder), and (iviii) such other information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) causes or if it is necessary at would cause any time Issuer Free Writing Prospectus to amend not comply with the requirements of Rule 433(c) of the Securities Act Regulations, or supplement (iii) would require the Prospectus or the Disclosure Package to be amended or supplemented in order for such document to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, not comply with the requirements of Rule 433(c) of the Securities Act Regulations, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated judgment of the Company or the Representatives, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement Representatives to the filing (which need consent shall not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.unreasonably withheld, conditioned or delayed);
(hl) The Company will to furnish promptly to FBR each Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.;
(im) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will to furnish to FBRthe Representatives, not less than two Business Days business days before a filing with the Commission Commission, during the period referred to in paragraph (fi) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such the period will of two years hereafter to file all such documents in a the manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(kn) The Company will to apply the net proceeds of the sale of the Shares in accordance with its statements under the caption “Use of Proceeds” in the Disclosure Package and the Prospectus;
(o) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations,) covering a period of 45 12 months beginning after the effective date of the Registration Statement;
(p) to use its reasonable best efforts to maintain the listing of the Shares on the NYSE and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are traded on and quotations for which are reported by the NYSE;
(q) to take all necessary actions to ensure that, upon and at all times after the NYSE shall have approved the Shares for listing, it will be in compliance with all applicable corporate governance requirements set forth in the NYSE rules that are then in effect and, with respect to other applicable corporate governance requirements set forth in the NYSE rules not currently in effect, the Company is taking such steps to ensure that it will be in compliance with such requirements upon and all times after the effectiveness thereof;
(r) to maintain, at its expense, a registrar and transfer agent for the Shares;
(s) to refrain, from the date hereof until 90 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (iiB) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, ; or (iiiC) the granting issuance by the Company of shares of Common Stock or options to purchase Common Stock to the Company’s employees pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within ’s stock incentive plans described in the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Prospectus;
(lt) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than contemplated herein or (iii) pay or agree to pay to any Person person (other than the Underwriters) any compensation for soliciting any order to purchase any other securities of the Company.;
(qu) The Company will not invest to cause each of the persons listed on Schedule III hereto to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in futures contracts, options on futures contracts or options on commodities unless the form of Exhibit A hereto (the “Lock-Up Letter Agreement”);
(v) that the Company shall maintain for the Company and its Subsidiaries, as appropriate, Directors and Officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion;
(w) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and, upon the mutual agreement of the Commodity Exchange ActCompany and the Representatives, as amendeddisseminate a press release or other public statement, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActRepresentatives, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event; and
(rx) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the Securities Act not later than 10:00 A.M. (New York City time) time period prescribed by law, on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to xxxxxe the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise FBR the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.;
(df) The Company will advise FBR to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act.Act or requested by the Commission; to advise the Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representative shall reasonably object in writing;
(eg) The Company will, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business, prospects or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in promptly such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement amendments or supplement supplements to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(gi) The Company will make generally available to its stockholders as soon as practicable, and in furnish promptly to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(ij) The Company will to furnish to the Underwriters, not less than two business days before filing with the Commission, subsequent to the effective date of the Prospectus and during any period of time in which a prospectus relating to the Shares is required to be delivered under the Securities Act Regulations, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(k) to apply the net proceeds from of the sale of the Shares substantially in the manner set forth accordance with its statements under the caption "Use of Proceeds" in the Prospectus.;
(jl) The Company will furnish to FBRmake generally available to its security holders as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing of the Shares on the American Stock Exchange Act and during such period will to file with the American Stock Exchange all such documents in a manner and within the time periods notices required by the American Stock Exchange Act.of companies that have securities that are listed on the American Stock Exchange;
(kn) The Company will except for the granting of options in the ordinary course of business pursuant to the Company's 1989 Stock Option Plan or 1996 Stock Option Plan (not sellto exceed an aggregate of ________ options), offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for refrain during a period of 45 90 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBR. The the Representative, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option outstanding on the date hereof and referred to or upon the exercise of any option granted in the Prospectusordinary course of business as provided herein, or (iiiC) any Common Shares issuable upon the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing conversion of any shelf registration statement after thirty days from shares of Preferred Stock outstanding on the date hereof, ;
(vio) the filing Company will maintain a transfer agent and, if necessary under the jurisdiction of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares formation of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(lp) The the Company will use its best efforts to cause continue to meet the requirements to qualify as a real estate investment trust under the Code;
(q) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(r) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act;
(s) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representative's reasonable opinion the market price of the Common Shares has been or is likely to be listed materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, in compliance with the Securities Act, the Securities Act Regulations and other applicable laws and reasonably satisfactory to the Representative, responding to or commenting on the NYSE and such rumor, publication or event;
(t) to maintain such listing and to file with the NYSE all documents and notices required by the NYSE a system of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.intervals and appropriate action is taken with respect to any differences;
(nu) The if the Company will engage elects to rely on Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will shall pay all expenses, the applicable fees and taxes (other than any transfer taxes and fees and disbursements in accordance with Rule 111 promulgated under the Act by the earlier of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) 10:00 p.m., New York City time, on the preparation date of this Agreement and filing of the Registration Statement, 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 issuancetime confirmations are sent or given, sale and delivery of the Shares as specified by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, Rule 462(b)(2);
(v) for a period of 90 days after the filingdate hereof, if any, for review of the public offering of the Shares by the NASD, (vi) the costs and expenses of neither 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 nor 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) takeSubsidiary will, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, : (i) take any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or to result in, or that has constituted or which might in the future reasonably be expected to cause or result inconstitute, the stabilization or manipulation of the price of any security of the Company, Company to facilitate the sale or resale of any of the Shares, ; or (iiii)(A) sell, bid for, purchase purchase, or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of of, the Shares, ; or (iiiB) pay or agree to pay to any Person person any compensation for soliciting any order another to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.; and
(w) The the Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 obtain each of the Sarbaneslock-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company up agreements described in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated Section 6(k) hereof prior to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedClosing Time.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (One Liberty Properties Inc)
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. 4:00 p.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. 4:00 p.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentatives, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) prior to the time of purchase, the Company will execute and file with the MSDAT, the Articles Supplementary. The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which shall first provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary the form of Articles Supplementary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access counsel to the assets Underwriters and shall not file any form of Articles Supplementary to which counsel to the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.Underwriters has reasonably objected;
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(po) The Company will not to (i1) takesell, 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, prior any Series B Preferred Shares or securities convertible into or exchangeable or exercisable for Series B Preferred Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Series B Preferred Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.Company or the Partnership that are substantially similar to Series B Preferred Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Series B Preferred Shares or securities convertible into or exercisable or exchangeable for Series B Preferred Shares or other rights to purchase Series B Preferred Shares or any other securities of the Company or the Partnership that are substantially similar to Series B Preferred Shares, respectively, for a period of 60 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for the registration of the Shares and the sales to the Underwriters pursuant to this 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(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;
(p) to use its best efforts to cause the Series B Preferred Shares to be listed on the New York Stock Exchange;
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Series B Preferred Shares;
(r) The Company will to comply with all of Rule 433(d) under the provisions of any undertakings in Act (without reliance on Rule 164(b) under the Registration Statement.Act) and with Rule 433(g) under the Act;
(s) The 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 has been organized and operated in conformity with or any Subsidiary, the requirements for qualification and taxation financial condition, results of operations, business, properties, assets, or liabilities of the Company as a REIT under or any Subsidiary, or the Codeoffering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business;
(t) to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2011 and for subsequent its future taxable years.
(t) The Company will not be or become, at any time prior to unless the expiration Board of three years after Trustees determines that it is no longer in the date best interests of the Agreement, an "investment company," as such term is defined in the Investment Company Act.to be so qualified; and
(u) The the Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with will reserve the REIT provisions maximum number of Common Shares issuable upon conversion of the Code and (ii) to otherwise assist Shares until such time as such Common Shares have been issued or the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the CodeSeries B Preferred Shares have been redeemed.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters 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 City timewithin the time periods required under Rule 424(b) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T promulgated by the Commission;
(xd) Xhe Company will to advise FBR the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent (which consent shall not be unreasonably withheld) of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR their Representative shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange (provided that the filing of same with XXXXX or any successor system of the Commission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder) and (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 FBR the Underwriters may reasonably request regarding the CompanyCompany and the Subsidiaries, in each case as soon as such communication, document or which information becomes available.the Underwriters and their Representative will keep confidential;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package in order to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated reasonable judgment of the Company or the Representative, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement Representative to the filing (which need consent may not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.unreasonably withheld);
(hl) The Company will to furnish promptly to FBR each Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representative may reasonably request.;
(im) The Company will to apply the net proceeds from of the sale of the Shares in the manner set forth accordance with its statements under the caption "“Use of Proceeds" ” in the Prospectus.Prospectus and the Disclosure Package;
(jn) The Company will furnish to FBRmake generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Exchange Securities Act and during such period will file all such documents (in a manner and within form, at the time periods required by option of the Exchange Act.
(kCompany, complying with the provisions of Rule 158 of the Securities Act Regulations,) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for covering a period of 45 days 12 months beginning after the effective date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Registration Statement;
(lo) The Company will to use its best efforts to cause maintain the listing of the Shares to be listed on the NYSE and to maintain such listing The Nasdaq Global Market and to file with the NYSE The Nasdaq Global Market all documents and notices required by the NYSE The Nasdaq Global Market of companies that have securities that are listed traded on the NYSE.The Nasdaq Global Market;
(mp) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, The Nasdaq Global Market shall have approved the Shares for listing, it will be in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that are then in effect and, with respect to other applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules not currently in effect, the Company will maintain take commercially reasonable steps to ensure that it will be in compliance with such requirements upon and keep accurate books after the effectiveness thereof;
(q) to take all necessary actions to ensure that, upon the Closing Time and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed each Option Closing Time, it will be in accordance compliance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation all applicable provisions of the Company's consolidated financial statements Xxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder or implementing the provisions thereof that are then in effect and, with respect to maintain accountability for the assets other applicable provisions of the CompanyXxxxxxxx-Xxxxx Act not currently in effect, (iii) access to the assets of the Company is permitted only will take commercially reasonable steps to ensure that it will be in accordance compliance with management's authorization such requirements upon and (iv) after the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.effectiveness thereof;
(nr) The Company will engage and to maintain, at its expense, a registrar and transfer agent for the Shares.;
(os) The Company will pay all expensesto refrain, fees and taxes from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the Representative, from, directly or indirectly, (other than i) offering, pledging, selling, contracting to sell, selling any transfer taxes and fees and disbursements of counsel option or contract to purchase, purchasing any option or contract to sell, granting any option for the Underwriterssale of, except as set forth or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under Section 5 hereof the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (iiii) or (ivii) belowabove is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the sale of shares of Common Stock by the Company to the Underwriters; the issuance of shares of Common Stock by the Company upon the exercise of stock options or the issuance of securities by the Company pursuant to its 2013 Equity Incentive Plan;
(t) in connection with to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the preparation and filing completion of the Registration Statement, distribution of the Prospectus, Shares within the meaning of the Securities Act 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 issuance, sale and delivery completion of the Shares by the Company90-day restricted period referred to in Section 5(s) hereof;
(u) not to, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealersuse its best efforts to cause its officers, (iv) any listing of the Shares on the NYSE directors and any registration thereof under the Exchange Actaffiliates not to, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qv) The Company will not invest to cause each of the persons listed on Schedule V hereto to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in futures contracts, options on futures contracts or options on commodities unless the form of Exhibit A hereto (“Lock-Up Letter Agreement”);
(w) that the Company shall obtain or maintain, as appropriate, directors and Officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion; and
(x) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Representative advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActRepresentative concerning the substance of, as amended. In additionand disseminate a press release or other public statement, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActRepresentative, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event;
(ry) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.;
Appears in 1 contract
Samples: Underwriting Agreement (ExOne Co)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriters:
(a) The Company will to furnish such information as may be required requested and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to maintain such qualification for more than 90 days from the date hereof (except that, upon the written request of the Representatives and at the expense of the Underwriters, the Company shall maintain such qualification for an additional period, not to exceed 180 days), or to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representatives and to file such Prospectus (or a terms sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree Agreement, and will to furnish promptly (and with respect to the initial delivery of such Prospectusthe prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be materially identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act Regulations;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to before amending or supplementing the Registration Statement becomes effective or the Prospectus, or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act.Act Regulations, to furnish to the Representatives a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR andthe Underwriters, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement and only to the extent unavailable through XXXXX (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD, American Stock Exchange or any securities exchange or the Nasdaq National Market and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, promptly to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company's expense, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters promptly such copies of the proposed amendment amendments or supplement supplements to the Prospectus as may be necessary to reflect any such change before filing any such amendment or supplement with the Commission Commission, and thereafter promptly furnish, to furnish at the Company's own expense, expense to the Underwriters and to dealers Underwriters, copies in such quantities and at such locations as FBR the Underwriters may from time to time reasonably request of an appropriate amendment request;
(i) to furnish promptly to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will to furnish to FBReach Representative, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (fh) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(k) The Company will to apply the net proceeds of the sale of the Shares in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, offeran earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, contract to sellat the option of the Company, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations) covering a period of 45 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing, quotation or inclusion of the Shares on the American Stock Exchange or the New York Stock Exchange, or in the Nasdaq National Market (each an "Exchange") and to file with such Exchange all documents and notices required by the Exchange of companies that have securities that are listed on or included in such Exchange;
(n) to refrain during a period of 90 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option options outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lo) The Company will to not, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers affiliates (including costs of mailing and shipment), (ii) the issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares to prospective investors and the Underwriters' sales forces, including, without limitation, expenses associated with the production of road show slides and graphicsFBR) not to, 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the SharesCompany, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(p) the Company will maintain, at the Company's expense, a registrar and transfer agent for the Common Shares;
(q) The the Company will use its best efforts to continue to qualify as a REIT under the Code and to cause Pegasus to continue to be registered as a broker-dealer with the Commission, the NASD, the SIPC and other applicable state and other regulatory authorities;
(r) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(s) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity subject to regulation as an investment company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(u) to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(v) not to invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange ActAct of 1978, as amendedamended (the "CEA"), or otherwise complies with the Commodity Exchange Act, as amendedCEA. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amendedCEA, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.; and
(w) The Company will maintain such controls to file timely and other procedures, including, without limitation, those required by Sections 302 and 906 accurate reports with the Commission in accordance with Rule 463 of the Sarbanes-Oxley Securities Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files Regulations or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedany successor provision.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (FBR Asset Investment Corp/Va)
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentatives, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than May 5, 2009;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares or other rights to purchase Common Shares or any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, for a period of 30 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for (1) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (2) the issuance of units of limited partnership interest by the Partnership in exchange for properties, (3) the issuance of Common Shares in redemption of units of limited partnership interest, and (4) the issuance of restricted share awards to the Company.’s management as described in the Company’s Definitive Proxy Statement filed on April 18, 2008 under the captions “Compensation Discussion and Analysis—Long-Term Incentive Plan” not to exceed 141,999 shares and “Proposal Two—Approval of the 2008 Equity Incentive Plan—2008 Stock Awards” not to exceed $2,625,000 valued as described in such Definitive Proxy Statement; 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(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;
(o) to use its best efforts to cause the Common Shares to be listed on the New York Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Common Shares;
(r) The Company will to comply with all of Rule 433(d) under the provisions of any undertakings in Act (without reliance on Rule 164(b) under the Registration Statement.Act) and with Rule 433(g) under the Act;
(s) The 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 has been organized and operated in conformity with or any Subsidiary, the requirements for qualification and taxation financial condition, results of operations, business, properties, assets, or liabilities of the Company as a REIT under or any Subsidiary, or the Codeoffering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business; and
(t) to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2008 and for subsequent its future taxable years.
(t) The Company will not be or become, at any time prior to unless the expiration Board of three years after Trustees determines that it is no longer in the date best interests of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedso qualified.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each Underwriter as follows:
(i) If reasonably requested by you in connection with the offering of the Offered Securities, the Company will prepare a preliminary prospectus supplement containing such information concerning the Offered Securities as you and the Company deem appropriate and (ii) promptly following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the number or principal amount of Offered Securities covered thereby, the names of the Underwriters that:participating in the offering and the number or principal amount of Offered Securities which each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the Offered Securities as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement, the Prospectus and the Prospectus Supplement as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations (a "Rule 434 Prospectus") and will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York City on the business day immediately succeeding the date of the applicable Terms Agreement.
(ab) The Company will notify each of you immediately, and confirm the notice in writing, (i) of the effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), (ii) of the mailing or the delivery or EDGAR transmission to the Commission for filing of any supplxxxxx to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) of the receipt of any comments from the Commission, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will give you notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)), any Term Sheet or any amendment, supplement or revision to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish you with copies of any such information amendment or supplement or other document proposed to be filed a reasonable amount of time prior to such proposed filing and will not file any such amendment or supplement or other document or use any such prospectus to which you or counsel shall reasonably object.
(d) The Company will deliver to you as many signed copies of the registration statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as you may reasonably request and will also deliver to you a conformed copy of the Registration Statement and of each amendment thereto for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be substantively identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the 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 material fact necessary to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, such amendment or supplement, whether by documents pursuant to the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company, during the period when the Prospectus is required and otherwise to be delivered under the 1933 Act, will cooperate file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(g) The Company will endeavor, in qualifying cooperxxxxx xxth the Shares Underwriters, to qualify the Offered Securities and, if applicable, the Common Stock to be issued upon conversion of Convertible Debt Securities or Convertible Preferred Stock, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions (both domestic as you may designate; PROVIDED, HOWEVER, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified and foreign) will not be obligated to execute a general consent to service of process in any state. In each jurisdiction in which the Offered Securities and, if applicable, the Common Stock, have been so qualified, the Company will file such statements and reports as FBR may designate and be required by the laws of such jurisdiction to maintain continue such qualifications qualification in effect so for as long as may be required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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)Offered Securities. The Company will promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Offered Securities or, if applicable, the Common Stock into which Convertible Debt Securities or Convertible Preferred Stock are convertible, for sale in any such state or jurisdiction or the initiation initiating or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(gh) The Company will make generally available to its stockholders security holders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months 90 days after the end close of the Company's current fiscal quarterperiod covered thereby, an earnings statement (which need not be auditedin form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a 12-twelve month period beginning after not later than the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) first day of the Securities Act and Company's fiscal quarter next following the "effective date" (as defined in said Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h158) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The If and to the extent specified in the applicable Terms Agreement, the Company will apply use its best efforts to effect the net proceeds from the sale listing of the Shares in Offered Securities on the manner set forth under New York Stock Exchange by the caption "Use of Proceeds" in Closing Time with respect to the Prospectusapplicable Terms Agreement.
(j) The For such period of time as is specified in the applicable Terms Agreement, commencing on the date of such Terms Agreement, the Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period")not, without the prior written consent of FBR. The foregoing sentence shall not apply the Underwriter, directly or indirectly, sell, offer to (i) sell, grant any option for the Shares sale of, or otherwise dispose of, any Offered Securities or, if such Terms Agreement relates to be sold hereunderConvertible Debt Securities or Convertible Preferred Stock, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or security convertible into Common Stock (vii) shares of except for Common Stock issued pursuant to the Company's existing Discount Waiverreservations or agreements or any employee stock option plan, Direct Stock Purchase and Dividend Reinvestment Planstock ownership plan or dividend reinvestment plan).
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters 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 City timewithin the time periods required under Rule 424(b) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T promulgated by the Commission;
(xd) Xhe Company will to advise FBR the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent (which consent shall not be unreasonably withheld) of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR their Representative shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange (provided that the filing of same with XXXXX or any successor system of the Commission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder) and (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 FBR the Underwriters may reasonably request regarding the CompanyCompany and the Subsidiaries, in each case as soon as such communication, document or which information becomes available.the Underwriters and their Representative will keep confidential;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package in order to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated reasonable judgment of the Company or the Representative, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement Representative to the filing (which need consent may not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.unreasonably withheld);
(hl) The Company will to furnish promptly to FBR each Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representative may reasonably request.;
(im) The Company will to apply the net proceeds from of the sale of the Shares in the manner set forth accordance with its statements under the caption "“Use of Proceeds" ” in the Prospectus.Prospectus and the Disclosure Package;
(jn) The Company will furnish to FBRmake generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Exchange Securities Act and during such period will file all such documents (in a manner and within form, at the time periods required by option of the Exchange Act.
(kCompany, complying with the provisions of Rule 158 of the Securities Act Regulations,) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for covering a period of 45 days 12 months beginning after the effective date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Registration Statement;
(lo) The Company will to use its best efforts to cause maintain the listing of the Shares to be listed on the NYSE and to maintain such listing The Nasdaq Global Market and to file with the NYSE The Nasdaq Global Market all documents and notices required by the NYSE The Nasdaq Global Market of companies that have securities that are listed traded on the NYSE.The Nasdaq Global Market;
(mp) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, The Nasdaq Global Market shall have approved the Shares for listing, it will be in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that are then in effect and, with respect to other applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules not currently in effect, the Company will maintain take commercially reasonable steps to ensure that it will be in compliance with such requirements upon and keep accurate books after the effectiveness thereof;
(q) to take all necessary actions to ensure that, upon the Closing Time and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed each Option Closing Time, it will be in accordance compliance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation all applicable provisions of the Company's consolidated financial statements Xxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder or implementing the provisions thereof that are then in effect and, with respect to maintain accountability for the assets other applicable provisions of the CompanyXxxxxxxx-Xxxxx Act not currently in effect, (iii) access to the assets of the Company is permitted only will take commercially reasonable steps to ensure that it will be in accordance compliance with management's authorization such requirements upon and (iv) after the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.effectiveness thereof;
(nr) The Company will engage and to maintain, at its expense, a registrar and transfer agent for the Shares.;
(os) The Company will pay all expensesto refrain, fees and taxes from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the Representative, from, directly or indirectly, (other than i) offering, pledging, selling, contracting to sell, selling any transfer taxes and fees and disbursements of counsel option or contract to purchase, purchasing any option or contract to sell, granting any option for the Underwriterssale of, except as set forth or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under Section 5 hereof the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (iiii) or (ivii) belowabove is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to the sale of shares of Common Stock by the Company to the Underwriters; the issuance of shares of Common Stock by the Company upon the exercise of stock options or the issuance of securities by the Company pursuant to its 2013 Equity Incentive Plan;
(t) in connection with to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the preparation and filing completion of the Registration Statement, distribution of the Prospectus, Shares within the meaning of the Securities Act 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 issuance, sale and delivery completion of the Shares by the Company90-day restricted period referred to in Section 5(s) hereof;
(u) not to, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealersuse its best efforts to cause its officers, (iv) any listing of the Shares on the NYSE directors and any registration thereof under the Exchange Actaffiliates not to, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qv) The Company will not invest to cause each of the persons listed on Schedule IV hereto to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in futures contracts, options on futures contracts or options on commodities unless the form of Exhibit A hereto (“Lock-Up Letter Agreement”);
(w) that the Company shall obtain or maintain, as appropriate, directors and Officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion; and
(x) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Representative advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActRepresentative concerning the substance of, as amended. In additionand disseminate a press release or other public statement, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActRepresentative, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event;
(ry) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.;
Appears in 1 contract
Samples: Underwriting Agreement (ExOne Co)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares Securities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the SharesSecurities, provided that the Company shall not be required to qualify as a foreign corporation 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 SharesSecurities). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct and the regulations thereunder, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.T; xx xxke no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of this Agreement and prior to any Closing Time which shall be disapproved by the Representatives promptly after reasonable notice thereof;
(xc) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the regulations under the Securities Act; if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Securities Act;
(d) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(f) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares Securities is required to be delivered under the Securities Act which would could require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference thereinreference, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating Company's expense, to the Shares is required Underwriters promptly such amendments or supplements to such Prospectus as may be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at reflect any time such change and to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies a copy of the such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Commission;
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant furnish promptly to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR each Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.;
(ih) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will to furnish to FBReach Representative, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Securities in accordance with its statements under the caption "Use of Proceeds" in the Prospectus Supplement;
(j) to make generally available to its security holders as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act and during such (in form, at the option of the Company, complying with the provisions of Rule 158 under the Securities Act) covering a period will file all such documents in a manner and within of 12 months beginning after the time periods required by effective date of the Exchange Act.Registration Statement;
(k) The to furnish to its security holders, for a period of five years from the date of this Agreement, as soon as practicable after the end of each fiscal year an annual report, including a balance sheet and statements of income, stockholders' equity and of cash flow of the Company will for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants;
(l) to furnish to the Representatives as early as practicable prior to the Closing Time and the Option Closing Time, 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 its 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(d) hereof;
(m) to comply with all provisions of any undertakings contained in the Registration Statement;
(n) to use its best efforts to effect and maintain the listing of the Common Stock on the New York Stock Exchange and to file with the New York Stock Exchange all documents and notices required by the New York Stock Exchange of companies that have securities that are listed on the New York Stock Exchange;
(o) to engage and maintain, at its expense, a registrar and transfer agent for the Securities;
(p) not to sell, offeroffer or agree to sell, contract to sell, hypothecate, pledge, register, grant any option to purchase sell or otherwise dispose of, directly or indirectly, any shares of capital stockCommon 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 file or cause to be declared effective a registration statement under the Securities Act relating to the offer and sale of any shares of Common Stock or securities convertible into, into or exercisable, exercisable or exchangeable for Common Stock or redeemable for shares other rights to purchase Common Stock or any other securities of capital stock the Company that are substantially similar to Common Stock for a period of 45 90 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to [ ], except for (i) the Shares registration of the Securities and the sales to be sold hereunderthe Underwriters pursuant to this Agreement, (ii) any shares issuances of Common Stock issued by the Company upon the exercise of an option options or warrants disclosed as outstanding on the date hereof and referred to in the Prospectus, Registration Statement and the Prospectus or incorporated by reference therein and (iii) the granting issuance of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 employee stock options not exercisable within during the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued Period pursuant to stock option plans described in the Company's existing Discount Waiver, Direct Stock Purchase Registration Statement and Dividend Reinvestment Plan.the Prospectus or incorporated by reference therein;
(lq) The Company will to not itself and to use its best efforts to cause the Shares to be listed on the NYSE its executive officers, directors, stockholders and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the SharesSecurities, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Securities or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.;
(r) The Company will comply with all if at any time during the 30-day period after any part of the provisions Registration Statement or Rule 462(b) Registration Statement, if any, becomes effective or the Preliminary Prospectus is filed with the Commission, any rumor, publication or event relating to or affecting the Company shall occur as a result of any undertakings which in the Registration Statement.reasonable opinion of the Representatives the market price of the Securities has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event; and
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue use its best efforts to meet the requirements for qualification and taxation to qualify as a REIT "real estate investment trust" under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to so long as the expiration Board of three years after the date Directors of the Agreement, an "investment company," as such term is defined Company deems it in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions best interests of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate stockholders to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedremain so qualified.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (American Home Mortgage Investment Corp)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under on the Securities Act not later than 10:00 A.M. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to on the initial delivery of such Prospectus, not later than 10:00 A.M. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriters, the text of which will be substantially identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.ST;
(xc) Xhe Company will to advise FBR immediatelythe Representatives promptly and (if requested by any of the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Representatives promptly, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the receipt of notice of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters Representatives for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating Company's expense, to the Shares is required Underwriters promptly such amendments or supplements to such Prospectus as may be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at reflect any time such change and to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies a copy of the such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Commission;
(g) The Company will make generally available to its stockholders as soon as practicable, and in furnish promptly to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy (i.e., the XXXXX version with facsimile signatures) of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(ih) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will to furnish to FBRthe Underwriters, not less than two Business Days one business day before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Shares in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(j) to make generally available to its security holders as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act and during such (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period will file all such documents in a manner and within of 12 months beginning after the time periods required by effective date of the Exchange Act.Registration Statement;
(k) The Company will not sellto use its best efforts to maintain the quotation of the Shares on the Nasdaq National Market and to file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have securities that are traded on the Nasdaq National Market;
(l) except with respect to acquisitions of other computer supply and office automation and projection representation product companies, offerthe 1996 Stock Option Plan, contract the 1998 Stock Option Plan, the Non-Employee Director Stock Option Plan, the 1998 Employee Payroll Deduction Stock Purchase Plan, the 401(k) Plan and the filing on Form S-3 to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any register shares of capital stockCommon Stock held by the former owners of the Company's Subsidiaries and the FBR Fund (as defined in the Prospectus), or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for to refrain during a period of 45 180 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRFriedman, Billings, Xxxxxx & Co., Inc., from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, or (iiB) any shares of Common Stock issued by the Company upon the exercise of an option or warrant outstanding on the date hereof and referred to in the Prospectus;
(m) except for the 1998 Employee Payroll Deduction Stock Purchase Plan, (iiithe 401(k) the granting of options pursuant to Plan, the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not obligation to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) repurchase shares of Common Stock issued pursuant from the former owners of Britco, Inc. and for the purchase by directors, officers and affiliates of the Company in the offering contemplated hereby, to the Company's existing Discount Waiver, Direct Stock Purchase not itself and Dividend Reinvestment Plan.
(l) The Company will to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement30 day period after the Registration Statement becomes effective, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qn) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.; and
(so) The if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Stock has been organized and operated in conformity with the requirements for qualification and taxation or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Company as a REIT under Prospectus) and after written notice from any of the Code, and the Company's proposed methods of operation will enable Representatives advising the Company to continue the effect set forth above, to meet forthwith consult with the requirements for qualification Representatives concerning the substance of, and, if deemed necessary or advisable by the Company, in its reasonable discretion, to prepare and taxation as disseminate a REIT under the Code for subsequent taxable years.
(t) The Company will not be press release or becomeother public statement, at any time prior reasonably satisfactory to the expiration of three years after the date of the AgreementRepresentatives, an "investment company," as responding to or commenting on such term is defined in the Investment Company Actrumor, publication or event.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Miami Computer Supply Corp)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to use commercially reasonable efforts to furnish such information as may be required and otherwise will to cooperate with the Underwriters in qualifying the Shares Securities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the SharesSecurities; provided, provided however, that the Company shall not be required to qualify as a foreign corporation corporation, to subject itself to 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.Securities);
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) of the Securities Act Regulations within the applicable time period prescribed for such filing by Rule 424(b) of the Securities Act Regulations and will provide evidence satisfactory to the Representative of such timely filing; file any “written communication” (as defined in Rule 405 under the Securities Act not later than 10:00 A.M. Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (New York City timean “Issuer Free Writing Prospectus”) on or before (including the second Business Day following pricing terms substantially in the date of this Agreement or on such other day as form set forth in Schedule II hereto) to the parties may mutually agree extent required by Rule 433 under the Securities Act; and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as 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 the Registration Statement) and each Issuer Free Writing Prospectus in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus or the Prospectus Prospectus, or for additional information with respect thereto, (ii) when, prior to the termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iv) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement that becomes known to the Company, or (v) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Securities contemplated herein; and, so long as a prospectus is required to be delivered in connection with the offering of the Securities (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) (the “Prospectus Delivery Period”), to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.writing;
(e) The Company will, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters Representative for a period of five three (3) years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of the Securities, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents FINRA or reports filed with any national securities exchange on which any class of securities of the Company is listedexchange, and (iviii) such other information as FBR the Representative may reasonably request regarding the CompanyCompany and the Subsidiaries (provided, however, that in each case as soon as such communicationof (i), document (ii) and (iii), the filing of same with XXXXX or information becomes available.any successor system of the Commission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder);
(f) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to Delivery Period which, in the Shares is required to be delivered under judgment of the Securities Act which Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Preliminary Prospectus then being used, or in the information incorporated by reference therein, Prospectus so that the Preliminary Prospectus or the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if (ii) would make it is necessary at any time to amend or supplement the Preliminary Prospectus or the Prospectus in order to comply with any law. If within the time law and, in each case, during which a Prospectus relating such time, to promptly prepare and furnish to the Shares is required Representative copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to be delivered under the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Preliminary Prospectus or the Prospectus so that the Preliminary Prospectus or the Prospectus as so amended or supplemented will not when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act any event shall occur or condition shall exist whichRegulations) is so delivered, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Preliminary Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.applicable law;
(g) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and in any Preliminary Prospectus or the manner Prospectus contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.5(f);
(h) The Company will within the Prospectus Delivery Period, other than an amendment or supplement consisting solely of a document required to be filed under the Exchange Act following the Closing Time, prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus to furnish a copy thereof to FBR the Representative and counsel for the Underwriters and to obtain the consent of the Representative (which consent shall not be unreasonably withheld or delayed) to the filing;
(i) to furnish promptly to the Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibitswithout exhibits thereto) as FBR the Representative may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.request;
(j) The Company will furnish to FBR, not less than two Business Days before a filing timely file with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed documents required pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will file all such documents the Prospectus Delivery Period in a the manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(k) to apply the net proceeds of the sale of the Securities in accordance with its statements under the caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus;
(l) to make generally available to its security holders and to deliver to the Representative as soon as practicable, an earnings statement complying with the provisions of the last paragraph of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of twelve (12) months beginning after the effective date of the Registration Statement;
(m) to use its reasonable best efforts to effect the listing of the Securities on The Nasdaq Global Market within thirty (30) days of the Closing Time;
(n) to use its reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Underwriters may designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided, however, that the foregoing shall not apply to the extent that the Securities are “covered securities” that are exempt from state regulation of securities offerings pursuant to Section 18 of the Securities Act; and provided, further, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(o) take all necessary actions to ensure that it will not sellbe in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that are currently in effect;
(p) to take all necessary actions to ensure that it is in compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder that are currently in effect;
(q) to cooperate with the Representative and use its commercially reasonable efforts to permit the offered Securities to be eligible for clearance and settlement through the facilities of DTC;
(r) to maintain a trustee, offerpaying agent and registrar for the Securities;
(s) to refrain from, contract and cause any Subsidiary to refrain from, selling, offering to sell, pledgecontracting or agreeing to sell, registerhypothecating, grant pledging, granting any option to purchase or otherwise disposing of or agreeing to dispose of, directly or indirectly, any shares of capital stockdebt securities issued or guaranteed by Company or securities convertible into or exchangeable or exercisable for debt securities issued or guaranteed by Company or warrants or other rights to purchase debt securities issued or guaranteed by Company, or filing or causing to be declared effective a registration statement under the Securities Act relating to the offer and sale of any debt securities issued or guaranteed by Company or securities convertible into, into or exercisable, exchangeable or redeemable exercisable for shares of capital stock debt securities issued or guaranteed by Company or warrants or other rights to purchase debt securities issued or guaranteed by Company for a period of 45 forty-five (45) days after the date hereof (the "Lock-Up Period")hereof, without the prior written consent of FBRthe Representative, which may not be unreasonably withheld. The foregoing sentence shall not apply to (i) the Shares registration of the Securities and the sales to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options Underwriters pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.this Agreement;
(lt) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, Securities or (ii) sell, bid for, purchase or pay any Person anyone (other than as contemplated by the provisions hereofUnderwriters) any compensation for soliciting purchases of the SharesSecurities;
(u) that the Company and its Subsidiaries shall obtain or maintain, or as appropriate, directors and officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion;
(iiiv) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities that the Company, during a period of two (2) years from the effective date of the Company.
(q) The Company Registration Statement, will not invest in futures contractscontinue to use its reasonable best efforts to maintain its status as a BDC; provided, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In additionhowever, the Company will not engage in may change the nature of its business so as to cease to be, or to withdraw its election as, a BDC, with the approval of the board of directors and a vote of stockholders as required by Section 58 of the 1940 Act or any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.successor provision;
(rw) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.Statement;
(sx) The Company has been organized and operated in conformity with the requirements for qualification and taxation of that the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue use its reasonable best efforts to meet the requirements for qualification and taxation of Subchapter M of the Code to qualify as a REIT RIC under the Code for subsequent taxable years.with respect to any fiscal year in which the Company is a BDC;
(ty) The that the Company will not be or become, at any time prior use its reasonable best efforts to the expiration maintain a system of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
internal accounting controls sufficient to provide reasonable assurances that (uA) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company and its assets is promptly made known to them by others within those entitiesthe officers responsible for establishing and maintaining the system of internal accounting controls; and (B) any significant deficiencies or weaknesses in the design or operation of internal accounting controls which could adversely affect the Company’s ability to record, particularly during process, summarize and report financial data, and any fraud whether or not material that involves management or other employees who have a significant role in internal controls, are adequately and promptly disclosed to the period in which such periodic reports are being prepared.Company’s independent auditors and the audit committee of the Company’s board of directors; and
(xz) The before using, approving or referring to any Written Testing-the-Waters Communications and Roadshow Material, the Company will comply with all effective applicable provisions furnish to the Representative and counsel for the Underwriters a copy of such material for review and will not use, approve or refer to any such material to which the Sarbanes-Oxley ActRepresentative reasonably object.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatInitial -------------------------------- Purchasers as follows:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying During the Shares for offering and sale under period from the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR may designate and to maintain such qualifications in effect so long as required for date hereof until the distribution earlier of the Shares90th day hereafter and the day on which all the Certificates have been sold by the Initial Purchasers, provided that the Company shall not be required to qualify as a foreign corporation make any amendment or to consent supplement to the service of process under the laws of any Offering Memorandum if such jurisdiction (except service of process with respect to the offering and sale of the Shares). The Company will promptly advise FBR of the receipt amendment or supplement shall be reasonably disapproved by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeInitial Purchasers promptly after reasonable notice thereof.
(b) The Company will prepare During the Prospectus in a form approved period from the date hereof until the earlier of the 90th day hereafter and the day on which all the Certificates have been sold by the Underwriters and file such Prospectus Initial Purchasers, the Company shall furnish the respective Initial Purchasers with the Commission pursuant to Rule 424(b) under the Securities Act 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 the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agree) to the Underwriters copies of the Prospectus Offering Memorandum (or of the Prospectus as amended any amendment thereof or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementsupplement thereto) in such quantities and at such locations as the Underwriters each Initial Purchaser may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes availablerequest.
(fc) The Company will advise If, during the Underwriters promptly period from the date hereof until the earlier of the happening of 90th day hereafter and the day on which all the Certificates have been sold by the Initial Purchasers, any event known to shall have occurred as a result of which the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which Offering Memorandum as then amended or supplemented would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when the Offering Memorandum is delivered by the Company to the Initial Purchasers, not misleading, or, if for any other reason it shall, in the judgment of the Company, be necessary or if it is necessary at any time desirable during such period to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any lawOffering Memorandum, the Company will promptly shall notify the Initial Purchasers and, upon their request, prepare (in a form reasonably acceptable to the Initial Purchasers) and furnish without charge to the Underwriters respective Initial Purchasers as many copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each Initial Purchaser may from time to time reasonably request of an appropriate amendment to the Registration Statement amended Memorandum or a supplement to the Prospectus so that the Prospectus as so amended Offering Memorandum which will correct such statement or supplemented will not, in the circumstances when it is so delivered, be misleading omission or so that the Prospectus will comply with the laweffect such compliance.
(gd) The Company will make generally available shall furnish, or shall cause the Trust and Servicing Agreement to its stockholders as soon as practicablerequire the Servicer and/or the Trustee to furnish, upon request, to holders and in the manner contemplated by Rule 158 prospective purchasers of the Securities Act but in any event not later than 15 months after Certificates information satisfying the end requirements of the Company's current fiscal quarter, an earnings statement subsection (which need not be auditedd)(4)(i) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to of Rule 424(b) 144A under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(ke) The Company will not sellIf required by either Initial Purchaser, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will shall use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file efforts, in cooperation with the NYSE all documents and notices required by Initial Purchasers, to qualify the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares Regular Certificates for offering and sale under state the applicable securities laws of such jurisdictions as the Initial Purchasers may designate and will maintain such qualifications in effect as long as required for the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares to prospective investors and the Underwriters' sales forcesRegular Certificates; provided, includinghowever, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged by that the Company shall not be obligated to file any general consent to service of process or qualify as a foreign limited liability company or as a dealer in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period jurisdiction in which such periodic reports are being preparedit is not otherwise so subject.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to and within the time period prescribed by Rule 424(b) under the Securities Act not later than 10:00 A.M. (New York City time) without reliance on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree Rule 424(b)(8)), and will furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. 4:00 p.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREDGXX, except xxcept to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Issuer Free Writing Prospectuses, if any, to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus, Issuer Free Writing Prospectuses, if any, so that the Pre-Pricing Prospectus, Prospectus or Issuer Free Writing Prospectuses, if any, as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus, Prospectus or Issuer Free Writing Prospectuses, if any, will comply with the law.;
(gf) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentatives, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act 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;
(g) to furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and Rule 158 thereunder statements of income, shareholders’ equity and will advise cash flow of the Underwriters in writing when Company, the Partnership and the Subsidiaries for such statement has been made available.fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(h) The Company will to furnish to FBR the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(i) The to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries; provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through EDGXX;
(j) to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(d) 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 Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(l) The prior to the time of purchase, the Company will use its best efforts to cause the Shares to be listed on the NYSE execute and to maintain such listing and to file with the NYSE all documents MSDAT, the Articles Supplementary. The Company shall first provide the form of Articles Supplementary to counsel to the Underwriters and notices required by shall not file any form of Articles Supplementary to which counsel to the NYSE of companies that have securities that are listed on the NYSE.Underwriters has reasonably objected;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Issuer Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior to termination any 8.00% Series B Cumulative Redeemable Preferred Shares of Beneficial Interest (liquidation preference $25.00 per share), $ 0.01 par value (the underwriting syndicate contemplated by this Agreement“Series B Preferred Shares”), any action designed to stabilize 6.75% Series C Cumulative Redeemable Preferred Shares of Beneficial Interest (liquidation preference $25.00 per share), $ 0.01 par value (the “Series C Preferred Shares”) or manipulate the price of any security of the Company, Series D Preferred Shares or which may cause securities convertible into or result in, exchangeable or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the exercisable for Series B Preferred Shares, (ii) sell, bid for, Series C Preferred Shares or Series D Preferred Shares or warrants or other rights to purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the ownership of Series B Preferred Shares, Series C Preferred Shares or (iii) pay Series D Preferred Shares or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company or the Partnership that are substantially similar to Series B Preferred Shares, Series C Preferred Shares or Series D Preferred Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Series B Preferred Shares, Series C Preferred Shares or Series D Preferred Shares or securities convertible into or exercisable or exchangeable for Series B Preferred Shares, Series C Preferred Shares or Series D Preferred Shares or other rights to purchase Series B Preferred Shares, Series C Preferred Shares or Series D Preferred Shares or any other securities of the Company or the Partnership that are substantially similar to Series B Preferred Shares, Series C Preferred Shares or Series D Preferred Shares, respectively, for a period of 30 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement;
(o) to use its best efforts to cause the Series D Preferred Shares to be listed on the New York Stock Exchange;
(p) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company., a registrar for the Series D Preferred Shares;
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with an applicable no-action letter to Rule 433(g) under the Company from the Commodities Futures Trading Commission.Act;
(r) The 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 will comply with all or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the provisions Company or any Subsidiary, or the offering of any undertakings the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the Registration Statement.ordinary course of business;
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2016 and for subsequent its future taxable years., unless the Board of Trustees determines that it is no longer in the best interests of the Company to be so qualified; and
(t) The the Company will not be or become, at any time prior to reserve the expiration maximum number of three years after the date Common Shares issuable upon conversion of the Agreement, an "investment company," Shares until such time as such term is defined in Common Shares have been issued or the Investment Company ActSeries D Preferred Shares have been redeemed.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The to file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rules 430A, 430B or 430C under the Act, to file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act, if applicable; and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company will with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and to furnish copies of each Issuer Free Writing Prospectus, if any, (to the extent not previously delivered) to the Placement Agents in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Placement Agents may reasonably request;
(b) to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Placement Agents may designate and to maintain such qualifications in effect so long as required the Placement Agents may request for the distribution of the Shares; provided, provided however, that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Placement 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.;
(bc) The Company will prepare to make available to the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of Placement Agents, as soon as practicable after this Agreement or on such other day as the parties may mutually agree becomes effective, and will thereafter from time to time to furnish promptly (and with respect to the initial delivery of such ProspectusPlacement Agents, 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 the parties may mutually agree) to the Underwriters many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Placement Agents may reasonably request for request; in case delivery (whether physically or through compliance with Rule 172 under the purposes contemplated by Act or any similar rule) of a prospectus in connection with the Securities sale of the Shares is required after the nine-month period referred to in Section 10(a)(3) of the Act, which and after the Prospectus and any amendments or supplements thereto furnished time a post-effective amendment to the Underwriters will be identical Registration Statement is required pursuant to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Item 512(a) of Regulation S-T.K under the Act, the Company will promptly prepare, at its expense, 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;
(xd) Xhe if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its reasonable best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective as soon as possible, and the Company will advise FBR immediatelythe Placement Agents promptly and, if requested by the Placement Agents, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance with such Rules);
(e) to advise the Placement Agents promptly, 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 Statement, the Prospectus or the Prospectus Time of Sale Information, or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission of any should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the Statement, to use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 its reasonable effort best efforts to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Placement Agents promptly of any proposal to amend or supplement the Registration Statement Statement, the Prospectus or the Prospectus including by Time of Sale Information, and to provide the Placement Agents and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Placement Agents shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) copies of any reports or other communications which the Company objection shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may not be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.unreasonable;
(f) The Company will to advise the Underwriters Placement Agents promptly of the happening of any event known to the Company within the time period during which a Prospectus relating to the Shares prospectus 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 would event could require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own ’s expense, to the Underwriters and Placement Agents promptly such amendments or supplements to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterPlacement Agents, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise Act) covering a period of twelve months beginning after the Underwriters date of this Agreement as soon as is reasonably practicable after the termination of such twelve-month period but in writing when such statement has been made available.any case not later than June 1, 2007;
(h) The Company will to furnish to FBR a signed copy the Placement Agents two copies each of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.);
(i) The to furnish to the Placement Agents as early as practicable prior to the Time of Sale, 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 will and any 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(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.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.;
(k) The Company will whether or not sellthe transactions contemplated by this Agreement are consummated or this Agreement is terminated, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares reimburse the Placement Agents for expenses reasonably incurred by the Placement Agents in connection with the sale of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the ProspectusProspectus and the Time of Sale Information, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters Placement Agents and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares and any fees payable in connection with the settlement systems of the Placement Agents, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Subscription Agreements, 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 Placement Agents 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 to for the UnderwritersPlacement Agents) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Placement Agents and to dealers, (ivv) any listing of the Shares on any securities exchange or qualification of the NYSE Shares for quotation on the Nasdaq and any registration thereof under the Exchange Act, (vvi) the filing, if any, 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 Placement Agents relating to NASD matters, (vivii) 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' Placement Agents’ 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, (ix) the fees and other disbursements of counsel to the Placement Agents, and (viix) the performance of the Company's ’s other obligations hereunder.;
(l) to comply with Rule 433(g) under the Act;
(m) 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 Placement Agents, 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 Exchange Act and the rules and regulations of the Commission promulgated thereunder, 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 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, (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 offer and sale of the Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto) 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 (excluding the exhibits thereto) and the Prospectus;
(n) prior to the Closing Date, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets, or liabilities of the Company, or the offering of the Shares, without the prior consent of the Placement Agents, except as may be required by law, in which case the Company shall use its reasonable best efforts to allow the Placement Agents reasonable time to comment on such release or other communication in advance of such issuance;
(o) not, at any time at or after the execution of this Agreement, to 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 Prospectus or the Time of Sale Information;
(p) The the Company will not, and will cause its Subsidiaries not (i) to, take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Companydesigned, or which may cause or result inwill constitute, or which has constituted, or might in the future reasonably be expected to cause or result in, in the stabilization or manipulation of the price of any security of the Company, Company to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.;
(q) The Company will not invest in futures contracts, options to use its best efforts to cause the Shares to be listed for quotation on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject Nasdaq and to the Commodity Exchange Act, as amended, unless maintain such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.listing; and
(r) The Company will comply with all to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the provisions of any undertakings in Company, a registrar for the Registration StatementCommon Stock.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. 4:00 p.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. 4:00 p.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentatives, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representatives as early as practicable prior to the time of purchase a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) prior to the time of purchase, the Company will execute and file with the MSDAT, the Articles Supplementary. The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which shall first provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary the form of Articles Supplementary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access counsel to the assets Underwriters and shall not file any form of Articles Supplementary to which counsel to the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.Underwriters has reasonably objected;
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(po) The Company will not to (i1) takesell, 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, prior any Series C Preferred Shares or securities convertible into or exchangeable or exercisable for Series C Preferred Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Series C Preferred Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.Company or the Partnership that are substantially similar to Series C Preferred Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Series C Preferred Shares or securities convertible into or exercisable or exchangeable for Series C Preferred Shares or other rights to purchase Series C Preferred Shares or any other securities of the Company or the Partnership that are substantially similar to Series C Preferred Shares, respectively, for a period of 30 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for the registration of the Shares and the sales to the Underwriters pursuant to this 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(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;
(p) to use its best efforts to cause the Series C Preferred Shares to be listed on the New York Stock Exchange;
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Series C Preferred Shares;
(r) The Company will to comply with all of Rule 433(d) under the provisions of any undertakings in Act (without reliance on Rule 164(b) under the Registration Statement.Act) and with Rule 433(g) under the Act;
(s) The 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 has been organized and operated in conformity with or any Subsidiary, the requirements for qualification and taxation financial condition, results of operations, business, properties, assets, or liabilities of the Company as a REIT under or any Subsidiary, or the Codeoffering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business;
(t) to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2013 and for subsequent its future taxable years.
(t) The Company will not be or become, at any time prior to unless the expiration Board of three years after Trustees determines that it is no longer in the date best interests of the Agreement, an "investment company," as such term is defined in the Investment Company Act.to be so qualified; and
(u) The the Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with will reserve the REIT provisions maximum number of Common Shares issuable upon conversion of the Code and (ii) to otherwise assist Shares until such time as such Common Shares have been issued or the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the CodeSeries C Preferred Shares have been redeemed.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriters:
(a) The Company will to furnish such information as may be required requested and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to maintain such qualification for more than 90 days from the date hereof (except that, upon the written request of the Representatives and at the expense of the Underwriters, the Company shall maintain such qualification for an additional period, not to exceed 180 days), or to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representatives and to file such Prospectus (or a terms sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree Agreement, and will to furnish promptly (and with respect to the initial delivery of such Prospectusthe prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be materially identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act Regulations;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Underwriter shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to before amending or supplementing the Registration Statement becomes effective or the Prospectus, or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act.Act Regulations, to furnish to the Underwriter a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR andthe Underwriters, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD, American Stock Exchange or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, promptly to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company's expense, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters promptly such copies of the proposed amendment amendments or supplement supplements to the Prospectus as may be necessary to reflect any such change before filing any such amendment or supplement with the Commission Commission, and thereafter promptly furnish, to furnish at the Company's own expense, expense to the Underwriters and to dealers Underwriters, copies in such quantities and at such locations as FBR the Underwriters may from time to time reasonably request of an appropriate amendment request;
(i) to furnish promptly to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will to furnish to FBReach Representative, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (fh) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(k) The Company will to apply the net proceeds of the sale of the Shares in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders and to deliver to the Underwriter as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, offeran earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, contract to sellat the option of the Company, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations) covering a period of 45 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing of the Shares on the American Stock Exchange and to file with the American Stock Exchange all documents and notices required by the American Stock Exchange of companies that have securities that are listed on the American Stock Exchange;
(n) to refrain during a period of 90 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option options outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lo) The Company will to not, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers affiliates (including costs of mailing and shipment), (ii) the issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares to prospective investors and the Underwriters' sales forces, including, without limitation, expenses associated with the production of road show slides and graphicsParent) not to, 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the SharesCompany, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(p) the Company will maintain, at the Company's expense, a registrar and transfer agent for the Common Shares;
(q) The the Company will use its best efforts to continue to qualify as a REIT under the Code and to cause Arlington Capital to continue to be registered as a broker-dealer with the Commission, the NASD, the SIPC and other applicable state and other regulatory authorities;
(r) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(s) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity subject to regulation as an investment company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(u) to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(v) not to invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange ActAct of 1978, as amendedamended (the "CEA"), or otherwise complies with the Commodity Exchange Act, as amendedCEA. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amendedCEA, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.; and
(w) The Company will maintain such controls to file timely and other procedures, including, without limitation, those required by Sections 302 and 906 accurate reports with the Commission in accordance with Rule 463 of the Sarbanes-Oxley Securities Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files Regulations or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedany successor provision.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (FBR Asset Investment Corp/Va)
Certain Covenants of the Company. The Company hereby covenants -------------------------------- and agrees with each of the Underwriters that:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR UBS Warburg may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR UBS Warburg of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) ), on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 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 the Registration StatementStatements) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.
(xc) Xhe The Company will advise FBR UBS Warburg immediately, confirming such advice in writing, of (i) the receipt of any comments from the Commission relating to the Registration Statements or the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, any other filing of the Company under the Securities Act or the Exchange Act, (ii) any request by the Commission for amendments or supplements to the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, the Registration Statement or the Prospectus Statements, or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of any one of the Registration Statement Statements or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, jurisdiction or (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. The Company will advise FBR UBS Warburg promptly of any proposal to amend or supplement the Prospectus or, prior to the termination of the underwriting syndicate contemplated in this Agreement, the Registration Statement or the Prospectus Statements, including by filing any documents that would be incorporated therein by reference reference, will afford UBS Warburg a reasonable opportunity to comment on any such proposed amendment or supplement and to will not file no any such amendment or supplement to which FBR UBS Warburg shall object to in writing.
(d) The Company will use its best efforts to advise FBR UBS Warburg promptly and, if requested by FBRUBS Warburg, will confirm such advice in writing when when, prior to the termination of the underwriting syndicate contemplated in the Agreement, any post-effective amendment to any one of the Registration Statement Statements becomes effective under the Securities Act.
(e) The Company will, promptly upon request, will furnish to FBR UBS Warburg and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) if different than the items contained in clauses (i) and (ii) above, copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listedlisted (other than correspondence or other similar communications), and (iv) such other information as FBR UBS Warburg may reasonably request regarding the CompanyCompany or any of the Subsidiaries, in each case as soon as such communicationcommunications, document documents or information becomes become available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company Company, the Subsidiaries or the Manager within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR UBS Warburg or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR UBS Warburg may from time to time reasonably request of an appropriate amendment to the Registration Statement Statements or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made availablethereunder.
(h) The Company will furnish to FBR UBS Warburg a signed copy of the Registration StatementStatements, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR UBS Warburg may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to furnish to FBRUBS Warburg, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will furnish to UBS Warburg, as early as practicable prior to the time of purchase and the 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 of the Company, the Subsidiaries and the Trusts 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.
(l) Neither the Company, the Subsidiaries, the Trusts nor the Manager will sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement, or amend any effective registration statement under the Securities Act relating to, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock stock, or publicly disclose the intention to make any such offer, sale, contract to sell, pledge, disposition, filing or amendment, for a period of 45 90 days after the date hereof (the "Lock-Up Period")hereof, without the prior written consent of FBRUBS Warburg, which consent will not be unreasonably withheld. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) shares of Common Stock issued pursuant to the granting DRSPP, (iv) the grant of options awards pursuant to the Company's Second Amended and Restated 1997 Employee 1992 Stock Option and Incentive Plan (not the "Plan") or issuances pursuant to exceed 500,000 the exercise of employee stock options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors feesawards, including restricted stock awards approved under an amendment to the Plan on July 17, 2001, (v) the filing of any shelf amendment to the Registration Statements and/or any new registration statement on Form S-3 by the Company for the purpose of registering shares of Common Stock in contemplation of any "at the market" offering of such shares pursuant to Rule 415(a)(4) promulgated under the Securities Act (a "Rule 415(a)(4) Offering") following the expiration of a period of 30 days after thirty days from the date hereof; provided, however, that any such filing shall be in compliance with the conditions set forth in this Section 4 or (vi) the filing issuance and sale of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.Rule 415(a)
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with Until the Closing Date (or, if applicable, other specified time), each of the Underwriters thatCompany and the Bank covenants with the Placement Agent as follows:
(a) 4.1 The Company will furnish shall promptly from time to time file appropriate forms and take such information other appropriate action as the Placement Agent may be required and otherwise will cooperate reasonably request in qualifying connection with applicable state securities laws (not including United States federal securities laws) in connection with the offering of Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR may designate and to maintain such qualifications contemplated hereby; provided, however, that in effect so long as required for the distribution of the Shares, provided that connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to the service of process under in any jurisdiction.
4.2 The Company shall file with the laws of any such jurisdiction (except service of process with respect Commission, to the offering and sale of the Shares). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial delivery of such Prospectusextent required, not later than 10:00 A.M. 15 days after the Closing Date, five copies of a notice on Form D (New York City timeone of which will be manually signed by a person validly authorized by the Company) on or before and will otherwise comply with the second Business Day following requirements of Rule 503 of Regulation D under the date of this Agreement or on such 1933 Act. The Company shall file with each other day as the parties may mutually agree) Regulator having jurisdiction, to the Underwriters extent required, not later than 15 days after the Closing Date, at least one copy of a notice on Form D (manually signed by a person validly authorized by the Company) and shall otherwise comply with the requirements of all applicable state securities laws. The Company shall furnish promptly to the Placement Agent evidence of all filings contemplated by this paragraph.
4.3 The Company and the Bank will furnish to the Placement Agent, as soon as available, copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus Private Placement Memorandum and any amendments or supplements thereto furnished thereto, all in such quantities as the Placement Agent may from time to time reasonably request. The Company and the Bank specifically authorize the Placement Agent and any subagents to use and distribute copies of the Private Placement Memorandum in connection with the sale of the Shares.
4.4 The Company shall comply to the Underwriters will be identical best of its ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, confirming such advice in writing, of (i) the receipt of any comments from the Commission relating to any filing completion 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification distribution of the Shares for offering as contemplated herein and in the Private Placement Memorandum. If it is necessary, in the Company’s reasonable opinion or sale in any jurisdictionthe reasonable opinion of the Company’s or the Placement Agent’s counsel, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or Private Placement Memorandum in connection with the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each distribution of the other Underwriters for a period of five years from the date of this Agreement (i) copies of any reports or other communications which Shares, then the Company shall send forthwith amend or supplement the Private Placement Memorandum by preparing and furnishing to its stockholders or shall from time to time publish or publicly disseminate, (ii) the Placement Agent such number of copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR they may reasonably request regarding of an amendment or amendments of, or a supplement or supplements to, the Company, Private Placement Memorandum (in each case as soon as such communication, document or information becomes available.
(f) The Company will advise form and substance satisfactory to the Underwriters promptly of Placement Agent and counsel for the happening of Placement Agent). If any event known shall occur as a result of which it is necessary to amend or supplement the Company within the time during which a Prospectus relating Private Placement Memorandum to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include correct an untrue statement of a material fact or omit to state include a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus Private Placement Memorandum to comply with any law. If within the time during which a Prospectus relating 1933 Act and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations, the Company shall, subject to the Shares is required second sentence of this subsection, forthwith amend or supplement the Private Placement Memorandum by preparing and furnishing to be delivered under the Securities Act any event shall occur Placement Agent such number of copies as it may reasonably request of an amendment or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being usedamendments of, or a supplement or supplements to, the Private Placement Memorandum (in form and substance reasonably satisfactory to the information incorporated by reference thereinPlacement Agent and counsel for the Placement Agent) so that, as so that amended or supplemented, the Prospectus would Private Placement Memorandum shall not include contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement .
4.5 For five years from the Prospectus to comply with any lawClosing Date, the Company will promptly prepare and shall furnish to the Underwriters Placement Agent copies of all reports and communications (financial or otherwise) furnished by the proposed amendment Company to the holders of the Shares as a class, copies of all reports and financial statements filed with or supplement before filing furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission), any national securities exchange, or other self-regulatory organization, if any, and such amendment other documents, reports, and information concerning the business and financial conditions of the Company as the Placement Agent may reasonably request, other than such documents, reports, and information which the Company have the legal obligation not to reveal to the Placement Agent. Any documents filed or supplement furnished electronically with the Commission and thereafter promptly furnish, at the Company's own expense, available on its website shall be deemed to be furnished to the Underwriters and Placement Agent pursuant to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the lawthis Section 4.5.
(g) The 4.6 Until the Closing Date, the Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period")not, without the prior written consent of FBR. The foregoing sentence shall not apply the Placement Agent, directly or indirectly, offer for sale, sell, or agree to sell, or otherwise dispose of any Shares other than as contemplated by this Agreement or any securities of the Company that are substantially similar to the Shares, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for: (i) contributions to employee benefit plans in existence on the Shares to be sold hereunder, date of the execution of this Agreement; or (ii) any shares of Common Stock issued by the Company upon pursuant to the exercise of an option any stock options outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company execution of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from this Agreement.
4.7 After the date hereofof this Agreement and through the Closing Date, except as described in or contemplated by the Private Placement Memorandum, neither the Company nor the Bank shall take any action (vior refrain from taking any action) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders which will result in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount WaiverBank incurring any material liability or obligation, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationdirect or contingent, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than or enter into any transfer taxes and fees and disbursements of counsel for the Underwritersmaterial transaction, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing ordinary course of the Registration Statement, the Prospectusbusiness, and there will not be any amendments material change in the financial position, common stock, trust preferred securities, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of minority interest in consolidated subsidiaries or any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (iv) any listing of the Shares on the NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (vi) the costs and expenses of the Company relating to presentations or meetings undertaken material increase 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 debt obligations of the Company and any such consultants, and (vii) the performance of the Company's other obligations hereunderBank on a consolidated basis.
(p) 4.8 The Company will shall not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, result in or which may cause or result in, has constituted or which might in the future reasonably be expected to cause or result in, the in stabilization or manipulation of the price of any security of the Company, to facilitate Company in connection with the sale or resale of any the Shares in violation of the SharesCommission’s rules and regulations, (ii) sellincluding, bid forbut not limited to, purchase Regulation D and Regulation M, and the Company is not aware of any such action taken or pay to be taken by any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities affiliate of the Company.
4.9 For a period of 90 days from the Closing Date (q) The the “Lock-Up Period”), the Company will not invest not, without the Placement Agent’s prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, hypothecate, pledge, enter into any transaction which is designed to, or might reasonably be expected to, result in futures contracts, options on futures contracts the disposition (whether by actual disposition or options on commodities unless effective economic disposition due to cash settlement or otherwise) by the Company is exempt from the registration requirements of the Commodity Exchange Act, as amendedor any affiliate, or otherwise complies with issue or dispose of, any of the Commodity Exchange ActCompany’s Common Stock or securities convertible into or exchangeable or exercisable for Common Stock, as amended. In additionor register or publicly announce any intent to register under the 1933 Act the offer or sale of any capital stock of the Company, except for: (i) the registration required pursuant to the Registration Rights Agreement; (ii) contributions to employee benefit plans in existence on the date of the execution of this Agreement; or (iii) pursuant to the exercise of any stock options outstanding on the date of the execution of this Agreement.
4.10 Before the Closing Date, the Company will not engage issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, the Bank, or the offering of the Shares (the “Offering”) without the Placement Agent’s prior consent, which shall not be unreasonably withheld or denied, provided, however, that the Company may issue a press release or other information without the Placement Agent’s consent if, in the Company’s reasonable opinion, the Company is legally required to do so.
4.11 To make generally available to its securityholders as soon as practicable, but in any activities event not later than eighteen months after the effective date of a Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which might need not be subject audited) complying with Section 11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158).
4.12 Upon filing of a registration statement pursuant to the Commodity Exchange ActRegistration Rights Agreement (a “Registration Statement”), to furnish to its stockholders, as amendedsoon as practicable after the end of each fiscal year, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company from and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the Commodities Futures Trading Commission.
(r) The Company will comply with all end of each of the provisions first three quarters of any undertakings in each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation ), consolidated summary financial information of the Company as and its subsidiaries for such quarter in reasonable detail.
4.13 Upon effectiveness of a REIT under the CodeRegistration Statement, to comply, and to use its best efforts to cause the Company's proposed methods of operation will enable the Company ’s directors and officers, in their capacities as such, to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or becomecomply, at any time prior to the expiration of three years after the date in all material respects, with all effective applicable provisions of the AgreementSxxxxxxx-Xxxxx Act of 2002 and the rules and regulations thereunder, an "investment company," including, but not limited to, the establishment and maintenance of disclosure controls and procedures (as such term is defined in the Investment Company Act.
(uRule 13a 15(e) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i15d 15(e) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, 1934 Act. Such disclosure controls and procedures will be (A) designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company Company, including its consolidated subsidiaries, is made known to them the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entitiesentities to allow timely decisions regarding disclosures, particularly during (B) evaluated for effectiveness as of the period in end of the most recent fiscal quarter and (C) effective to perform the functions for which such periodic reports are being preparedthey were established.
(x) The Company will 4.14 To comply with all effective applicable any of the provisions of the Sarbanes-Oxley Actany undertaking in any Registration Statement.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The to file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rules 430A, 430B or 430C under the Act, to file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act, if applicable; and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company will with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and to furnish copies of each Issuer Free Writing Prospectus, if any, (to the extent not previously delivered) to the Placement Agents prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Placement Agents may reasonably request;
(b) to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares; provided, provided however, that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR 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.;
(bc) The Company will prepare to make available to the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of Placement Agents, as soon as practicable after this Agreement or on such other day as the parties may mutually agree becomes effective, and will thereafter from time to time to furnish promptly (and with respect to the initial delivery of such ProspectusPlacement Agents, 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 the parties may mutually agree) to the Underwriters many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters either Placement Agent may reasonably request for request; in case delivery (whether physically or through compliance with Rule 172 under the purposes contemplated by Act or any similar rule) of a prospectus in connection with the Securities sale of the Shares is required after the nine-month period referred to in Section 10(a)(3) of the Act, which and after the Prospectus and any amendments or supplements thereto furnished time a post-effective amendment to the Underwriters will be identical Registration Statement is required pursuant to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Item 512(a) of Regulation S-T.K under the Act, the Company will promptly prepare, at its expense, 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;
(xd) Xhe if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its reasonable best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective as soon as possible, and the Company will advise FBR immediatelyyou promptly and, if requested by you, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance with such Rules);
(e) to advise you promptly, 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 Statement, the Prospectus or the Prospectus Time of Sale Information, or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission of any should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the Statement, to use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 its reasonable effort best efforts to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR you promptly of any proposal to amend or supplement the Registration Statement Statement, the Prospectus or the Prospectus including by Time of Sale Information, and to provide you and your counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR you shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) copies of any reports or other communications which the Company objection shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may not be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.unreasonable;
(f) The Company will to advise the Underwriters Placement Agents promptly of the happening of any event known to the Company within the time period during which a Prospectus relating to the Shares prospectus 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 would event could require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own ’s expense, to the Underwriters and Placement Agents promptly such amendments or supplements to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise Act) covering a period of twelve months beginning after the Underwriters in writing when date of this Agreement as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR a signed copy you two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.);
(i) The to furnish to you as early as practicable prior to the Time of Sale, 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 will and any 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;
(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.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.;
(k) The Company will whether or not sellthe transactions contemplated by this Agreement are consummated or this Agreement is terminated, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares reimburse the Placement Agent for expenses reasonably incurred by the Placement Agent in connection with the sale of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the ProspectusProspectus and the Time of Sale Information, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters Placement Agents and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares and any fees payable in connection with the settlement systems of the Placement Agents, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Subscription Agreements, 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 Placement Agents 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 to for the UnderwritersPlacement Agents) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Placement Agents and to dealers, (ivv) any listing of the Shares on any securities exchange or qualification of the NYSE Shares for quotation on the Nasdaq and any registration thereof under the Exchange Act, (vvi) the filing, if any, 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 Placement Agents relating to NASD matters, (vivii) 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' Placement Agents’ 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 consultantsconsultants not to exceed Fifty Thousand Dollars ($50,000), (ix) the fees and other disbursements of counsel to the Placement Agents not to exceed One Hundred Fifty Thousand Dollars ($150,000) in the aggregate, and (viix) the performance of the Company's ’s other obligations hereunder.;
(pl) The Company will to comply with Rule 433(g) under the Act;
(m) 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 Placement Agents, not to (i) takesell, 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, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, establish or which may cause increase a put equivalent position or result in, liquidate or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as decrease a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported call equivalent position within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.meaning of
Appears in 1 contract
Samples: Placement Agency Agreement (Auxilium Pharmaceuticals Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and timely file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act 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 the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to substantially the same as the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent for differences permitted by Regulation S-T.T and Rule 424 of the Securities Act;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five three (3) years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Companybusiness and financial condition of the Company and the Subsidiaries, in each case provided that (A) such information may be given legally pursuant to Regulation FD and Rule 10b-5 promulgated under the Exchange Act, (B) such information will be subject to such confidentiality and use restrictions as soon as such communication, document or information becomes available.
the Company may reasonably impose and (C) the obligations of the Company under this paragraph (f) The Company will shall be deemed satisfied by the placement of such information on the Company's internet website and timely notification to you of such placement;
(g) to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or counsel to the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading misleading, or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.;
(h) The to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company will or the Representatives, be required by the Securities Act or requested by the Commission;
(i) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to FBR the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, which consent shall not be unreasonably withheld, delayed or conditioned;
(j) to furnish promptly to each Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.;
(ik) The to furnish to each Representative, not less than one (1) business day before filing with the Commission subsequent to the effective date of the Prospectus and during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act (provided that such document may be given legally pursuant to Regulation FD and Rule 10b-5 promulgated under the Exchange Act and such document will be subject to such confidentiality and use restrictions as the Company will may reasonably impose) and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Exchange Act Regulations;
(l) to apply the net proceeds from of the sale of the Shares in the manner set forth accordance with its statements under the caption "Use of Proceeds" in the Prospectus.;
(jm) The Company will furnish to FBRmake generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earning statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Exchange Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of twelve (12) months beginning after the effective date of the Registration Statement;
(n) to use its commercially reasonable best efforts to maintain the quotation of the Shares on the Nasdaq National Market and during such period will to file with the NASD all such documents in a manner and within the time periods notices required by the Exchange Act.NASD of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market;
(ko) The Company will not sellto engage and maintain, offerat its expense, contract a registrar and transfer agent for the Shares;
(p) to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for refrain during a period of 45 one hundred eighty (180) days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, Prospectus or (iiiC) the granting of options equity-based awards granted pursuant to the Company's Second Amended equity-based award plans including restricted shares and Restated 1997 Employee Stock Option Plan (not options to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock purchase Common Shares granted or to directors be granted to officers of the Company of a portion of their annual or other directors fees, (v) as described in the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Prospectus;
(lq) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.;
(r) The to cause each 1% or greater shareholder, officer and director of the Company to furnish to the Representatives, prior to the first Date of Delivery, a letter or letters, substantially in the form of Exhibit B hereto (collectively, the "Lock-Up Agreements"), pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Shares or securities convertible into or exchangeable for Common Shares, except for the sales of Common Shares by the Selling Shareholders pursuant to this Agreement, or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or other securities, in cash or otherwise, in each case for a period of one hundred eighty (180) days from the date of the Prospectus, without the prior written consent of the Representatives on behalf of the Underwriters;
(s) that the Company shall obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $15 million which shall apply to the offering contemplated herein;
(t) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(v) that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.; and
(w) The during the 90-day period after the Registration Statement becomes effective, the Company will maintain such controls and shall deliver to the Representatives concurrently with the public issuance thereof a copy of any press release or other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed public statement issued by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434 under the Securities Act) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T and Rule 424 of the Securities Act;
(xd) Xhe Company will to advise FBR the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five (5) years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the CompanyCompany and the Subsidiaries; provided, in each case as soon as however that the Company shall not be required to furnish to the Underwriters any such communication, document reports or information becomes available.communications that have been filed with the Commission and are available on the Commission’s EXXXX system;
(fg) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading misleading, or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.;
(h) The to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company will or the Representative, be required by the Securities Act or requested by the Commission;
(i) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to FBR the Representative and counsel for the Underwriters and obtain the consent of the Representative to the filing;
(j) to furnish promptly to each Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representative may reasonably request.;
(ik) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a the manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(kl) The Company will to apply the net proceeds of the sale of the Shares in accordance with its statements under the caption “Use of Proceeds” in the Prospectus;
(m) to make generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations,) covering a period of 45 days twelve (12) months beginning after the effective date hereof of the Registration Statement;
(n) to use its best efforts to maintain the "Lockquotation of the Shares on the Nasdaq National Market and to file with the NASD all documents and notices required by the NASD of companies that have securities that are traded in the over-Up Period")the-counter market and quotations for which are reported by the Nasdaq National Market;
(o) to engage and maintain, at its expense, a registrar and transfer agent for the Shares;
(p) to refrain during a period of one hundred twenty (120) days from the date of the Prospectus, without the prior written consent of FBRthe Representative, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option (other than options in the ordinary course of business consistent with prior practices) for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, or (iiB) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lq) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.;
(r) The to cause each Principal Selling Stockholder to furnish to the Representative, prior to the first Date of Delivery, a letter, substantially in the form of Exhibit B hereto (the “Lock-Up Agreement”), pursuant to which each Principal Selling Stockholder shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of one hundred twenty (120) days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters;
(s) that the provisions of the letter agreement dated December 1, 2004 between the Company and the Representative shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herein;
(t) that the Company shall maintain, as appropriate, Directors and Officers liability insurance in an amount reasonably acceptable to the Representative, which shall apply to the offering contemplated herein;
(u) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; and
(v) that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Underwriter may designate and to maintain such qualifications in effect so as long as required requested by the Underwriter for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Underwriter promptly and, if requested by the Underwriter, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Underwriter 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 City timewithin the time periods required under Rule 424(b) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) to the Underwriters Underwriter copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T promulgated by the Commission;
(xd) Xhe Company will to advise FBR the Underwriter promptly and (if requested by the Underwriter) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Underwriter and its counsel and obtain the consent (which consent shall not be unreasonably withheld) of the Underwriter prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule I hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Underwriter immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Underwriter promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Underwriter shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters Underwriter for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange and (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 FBR the Underwriter may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Bank;
(fi) The Company will to advise the Underwriters Underwriter promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Underwriter or its counsel, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package in order to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters Underwriter copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters Underwriter and to dealers dealers, copies in such quantities and at such locations as FBR the Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated reasonable judgment of the Company or the Underwriter, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Underwriter and its counsel and obtain the consent of the Company's current fiscal quarter, an earnings statement Underwriter to the filing (which need consent may not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.unreasonably withheld);
(hl) The Company will to furnish promptly to FBR the Underwriter a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriter may reasonably request.;
(im) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will to furnish to FBRthe Underwriter, not less than two Business Days as soon as practicable before a filing with the Commission Commission, during the period referred to in paragraph (fi) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such the period will of one year hereafter to file all such documents in a the manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(kn) The Company will to apply the net proceeds of the sale of the Shares in accordance with its statements under the caption “Use of Proceeds” in the Prospectus and the Disclosure Package;
(o) to make generally available to its security holders and to deliver to the Underwriter as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations,) covering a period of 45 days 12 months beginning after the effective date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Registration Statement;
(lp) The Company will to use its best efforts to cause maintain the listing of the Shares to be listed on the NYSE and to maintain such listing The Nasdaq Capital Market and to file with the NYSE The Nasdaq Capital Market all documents and notices required by the NYSE The Nasdaq Capital Market of companies that have securities that are listed traded on the NYSE.The Nasdaq Capital Market;
(mq) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, The Nasdaq Capital Market shall have approved the Shares for listing, it will be in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that are then in effect and, with respect to other applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules not currently in effect, the Company will maintain take commercially reasonable steps to ensure that it will be in compliance with such requirements upon and keep accurate books after the effectiveness thereof;
(r) to take all necessary actions to ensure that, upon and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit at all times after the preparation effectiveness of the Company's consolidated financial statements and to maintain accountability for the assets Registration Statement, it will be in compliance with all applicable provisions of the CompanyXxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder or implementing the provisions thereof that are then in effect and, (iii) access with respect to the assets other applicable provisions of the Company is permitted only Xxxxxxxx-Xxxxx Act not currently in accordance with management's authorization and (iv) the recorded accounts of the assets of effect, the Company are compared will take commercially reasonable steps to ensure that it will be in compliance with existing assets at reasonable intervals.such requirements upon and after the effectiveness thereof;
(ns) The Company will engage and to maintain, at its expense, a registrar and transfer agent for the Shares.;
(ot) The Company will pay all expensesto refrain, fees and taxes from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the Underwriter, from, directly or indirectly, (other than i) offering, pledging, selling, contracting to sell, selling any transfer taxes and fees and disbursements of counsel option or contract to purchase, purchasing any option or contract to sell, granting any option for the Underwriterssale of, except as set forth or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock, any other equity security of the Company or the Bank or any securities convertible into or exercisable or exchangeable for Common Stock, or other such equity security (whether the Company now owns or hereafter acquires such Common Stock or other security) (“Relevant Securities”), filing any registration statement under Section 5 hereof the Securities Act with respect to any of the foregoing, or (ii) entering into any swap, derivative or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of any Relevant Security, whether any such swap or transaction described in clause (iiii) or (ivii) below) above is to be settled by delivery of Relevant Securities or such other securities, in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments cash or supplements thereto, and the printing and furnishing of copies of each thereof otherwise. The foregoing sentence shall not apply to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares to prospective investors and the Underwriters' sales forces, including, without limitation, expenses associated with the production shares of road show slides and graphics, fees and expenses of any consultants engaged Common Stock by the Company in connection with to the road show presentations, travel, lodging and other expenses incurred Underwriter; the issuance of shares of Common Stock by the officers Company upon the exercise of stock options, or the issuance of securities by the Company pursuant to the LCNB Ownership Incentive Plan, the Dividend Reinvestment and any such consultantsStock Purchase Plan or the Substitute Warrant to Purchase Shares of Common Stock, dated January 9, 2009;
(u) not to, and (vii) the performance of the Company's other obligations hereunder.
(p) The Company will to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person (other than the Underwriter) any compensation for soliciting any order to purchase any other securities of the Company.;
(qv) The Company will not invest to cause each of the persons listed on Schedule III hereto to furnish to the Underwriter, prior to the Initial Sale Time, a letter or letters, substantially in futures contracts, options on futures contracts or options on commodities unless the form of Exhibit A hereto (“Lock-Up Letter Agreement”);
(w) that the Company and the Bank shall obtain or maintain, as appropriate, directors and officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion; and
(x) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Underwriter, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Underwriter advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActUnderwriter concerning the substance of, as amended. In additionand disseminate a press release or other public statement, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActUnderwriter, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event; and
(ry) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (LCNB Corp)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. [__]:00 [a/p].m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. [__]:00 [a/p].m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Registration Statement, the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated judgment of the Company or the Representatives, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after Representatives to the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.filing;
(hl) The Company will to furnish promptly to FBR the Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.;
(im) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (fi) above, to furnish to the Representatives, not less than two business days before filing with the Commission, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will to file all such documents in a the manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(kn) The Company will to apply the net proceeds of the sale of the Shares in accordance with its statements under the caption “Use of Proceeds” in the Registration Statement, the Prospectus and the Disclosure Package;
(o) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations,) covering a period of 45 12 months beginning after the effective date of the Registration Statement;
(p) to use its best efforts to maintain the listing of the Shares on the NYSE and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE;
(q) to promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the 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 4(s) hereof;
(r) to engage and maintain, at its expense, a registrar and transfer agent for the Shares;
(s) to refrain, from the date hereof until 180 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, or (iiB) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lt) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qu) The Company will not invest in futures contractsto cause each 5% or greater stockholder of the Company, options on futures contracts or options on commodities unless and each officer and director of the Company to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree to the lock-up provisions as set forth in Exhibit B; and
(v) if, at any time during the 25-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Representatives advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActRepresentatives and its legal counsel concerning the substance and legality of, as amended. In additionand disseminate a press release, public statement or other response, reasonably satisfactory to the Representatives, addressing such rumor, publication or event; provided, however, that in no event shall the Company be required to address or respond to any rumor, publication or event in a manner that would, in the Company's reasonable opinion based on the advice of its counsel, give rise to any obligation on the Company’s part to update such disclosure or create a pattern or practice of responding to rumors;
(w) that the Company will not engage in any activities which might be subject continue to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter use its best efforts to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with meet the requirements for qualification and taxation of the Company to qualify as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.; and
Appears in 1 contract
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than [April 2], 2006;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to you promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through EXXXX;
(k) to furnish to you as early as practicable prior to the time of purchase a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) prior to the time of purchase, the Company will execute and file with the Maryland State Department of Assessments and Taxation (the “SDAT”) the Articles Supplementary (the “Articles Supplementary”) to its Amended and Restated Declaration of Trust establishing the terms of the Series A Cumulative Redeemable Preferred Shares. The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which shall first provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary the form of Articles Supplementary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access counsel to the assets Underwriters and shall not file any form of Articles Supplementary to which counsel to the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.Underwriters has reasonably objected;
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActAmerican Stock Exchange, (vvi) the filing, if any, 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, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(po) The Company will not to (i1) takesell, 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, prior any Series A Cumulative Preferred Shares or Preferred Units or securities convertible into or exchangeable or exercisable for Series A Cumulative Preferred Shares or Preferred Units or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Series A Cumulative Preferred Shares or (iii) pay Preferred Units or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.Company or the Partnership that are substantially similar to Series A Cumulative Preferred Shares or Preferred Units, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any Series A Cumulative Preferred Shares or Preferred Units or securities convertible into or exercisable or exchangeable for Series A Cumulative Preferred Shares or Preferred Units or other rights to purchase Series A Cumulative Preferred Shares or Preferred Units or any other securities of the Company or the Partnership that are substantially similar to Series A Cumulative Preferred Shares or Preferred Units, respectively, for a period of 30 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement;
(p) to use its best efforts to cause the Series A Cumulative Preferred Shares to be listed on the American Stock Exchange; and
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading CommissionSeries A Cumulative Preferred Shares.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectuses, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than August 9, 2007;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to you promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) 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, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActAmerican Stock Exchange, (vvi) the filing, if any, 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, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
Company or the Partnership that are substantially similar to Common Shares, respectively, or (q2) The Company will not invest in futures contracts, options on futures contracts file or options on commodities unless cause to be declared effective a registration statement under the Act relating to the offer and sale of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares or other rights to purchase Common Shares or any other securities of the Company is exempt from or the Partnership that are substantially similar to Common Shares, respectively, for a period of 90 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for the registration requirements of the Commodity Exchange ActShares and the sales to the Underwriters pursuant to this Agreement and the issuance of units of limited partnership interest by the Partnership in exchange for properties; provided, as amendedhowever, or otherwise complies with that if (a) during the Commodity Exchange Act, as amended. In additionperiod 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 will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act issues an earnings release or otherwise comply with that act material news or with an applicable no-action letter a material event relating to the Company from the Commodities Futures Trading Commission.
occurs; or (rb) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time 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(n) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three years (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(o) to use its best efforts to cause the Common Shares to be listed on the American Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), an "investment company," as such term is defined in the Investment Company Act.form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (iq) to test procedures and conduct annual compliance reviews designed to determine compliance with maintain a transfer agent and, if necessary under the REIT provisions jurisdiction of incorporation of the Code and Company, a registrar for the Common Shares;
(iir) to otherwise assist comply with Rule 433(d) under the Company in monitoring appropriate accounting systems Act (without reliance on Rule 164(b) under the Act) and procedures designed to determine compliance with Rule 433(g) under the REIT provisions of the Code.Act; and
(vs) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time prior to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files of purchase or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functionsany additional time of purchase, as appropriate the case may be, to allow timely decisions regarding required disclosure issue no press release or other communication directly or indirectly and to ensure that material information relating hold no press conferences with respect to the Company is made known to them by others within those entitiesor any Subsidiary, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions financial condition, results of operations, business, properties, assets, or liabilities of the Sarbanes-Oxley ActCompany or any Subsidiary, or the offering of the Shares, without your prior consent, unless such press release or other communication and such press conference is in the ordinary course of business.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees the Operating Partnership, jointly and severally, agree with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares Securities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the SharesSecurities, provided that the Company shall not be required to qualify as a foreign corporation 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 SharesSecurities). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Securities may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. 5:30 p.m. (New York City time) ), on or before the second Business Day following the date of this Agreement November 16, 2018 or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. (5:30 p.m. New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act;
(xd) Xhe Company to prepare the Final Term Sheet containing a description of the Notes and the offering contemplated hereby, in a form approved by the Underwriters and contained in Schedule III of this Agreement, and will file such term sheet pursuant to Rule 433(d) under the Securities Act as promptly as possible, but in any case not later than the time required by such rule;
(e) to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when any post-effective amendment to the Registration Statement becomes effective under the Securities Act;
(f) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(g) to comply with the requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(h) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Securities contemplated herein; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(di) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company willextent not available on EXXXX, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of the Securities, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fj) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares Securities (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Securities Act which which, in the judgment of the Company or in the reasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Registration Statement, the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Securities, or (iii) if it is necessary at any time to amend or supplement the Registration Statement, the Prospectus or the Disclosure Package to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Prospectus or the Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Registration Statement, the Prospectus or the Disclosure Package will comply with the law.;
(gk) The Company will make generally available to its stockholders as soon as practicable, and in file promptly with the manner contemplated by Rule 158 of the Securities Act but in Commission any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant amendment or supplement to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.;
(il) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish prior to FBR, not less than two Business Days before a filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(m) during the period referred to in paragraph (fj) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a the manner and within the time periods required by the Exchange Act.;
(kn) The Company will to apply the net proceeds of the sale of the Notes in accordance with its statements under the caption “Use of Proceeds” in the Registration Statement, the Prospectus and the Disclosure Package;
(o) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act) covering a period of 45 12 months beginning after the effective date of the Registration Statement;
(p) at all times, reserve and keep available, free of preemptive rights, enough shares of Common Stock for the purpose of enabling the Company to satisfy its obligations to issue the Conversion Shares upon conversion of the Notes;
(q) to use its best efforts to maintain the listing of the Notes and the Conversion Shares on the NYSE and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE;
(r) to refrain, from the date hereof until 60 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representatives, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares Notes to be sold hereunderhereunder (B) the issuance of the Conversion Shares, (iiC) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iiiD) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the 2014 Director Equity Plan or the 2016 Equity Incentive Plan referred to in the Registration Statement, the Prospectus and the Disclosure Package (E) the filing of any registration statement on Form S-8, or (F) the issuance of shares of Common Stock for a value not to exceed the amount set forth on Schedule V hereto, pursuant to those certain At-the-Market Issuance Sales Agreements, each dated October 3, 2016, among the Company's existing Discount Waiver, Direct Stock Purchase the Manager, Great Ajax Operating Partnership LP, Rxxxxxx Jxxxx & Associates, Inc., JMP Securities LLC and Dividend Reinvestment Plan.FBR Capital Markets & Co;
(ls) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the SharesSecurities, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Securities or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qt) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless to cause each officer and director of the Company is exempt from to furnish to the registration requirements Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree to the Commodity Exchange Act, lock-up provisions as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, set forth in Exhibit A;
(u) that the Company will not engage in any activities which might be subject continue to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter use its best efforts to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with meet the requirements for qualification and taxation of the Company to qualify as a REIT under the Code, and the Company's proposed methods of operation will enable ; and
(v) neither the Company to continue to meet nor any of the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or becomeSubsidiaries is and, at any time prior after giving effect to the expiration of three years after the date offering and sale of the AgreementSecurities, will be an "“investment company," ” or an entity “controlled” by an “investment company”, as such term is terms are defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters Underwriter that:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares Registered Securities for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR Credit Suisse may designate and to maintain such qualifications in effect so long as required for the distribution of the SharesRegistered Securities, provided that the Company shall not be required to qualify as a foreign corporation 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 SharesSecurities). The Company will promptly advise FBR Credit Suisse of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Registered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form in compliance with Rule 430B and approved by the Underwriters Underwriter 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 City time) ), on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 the parties may mutually agree) to the Underwriters Underwriter copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.
(xc) Xhe The Company will advise FBR Credit Suisse immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the ProspectusProspectus or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, (iv) the suspension of the qualification of the Shares Registered Securities for offering or sale in any jurisdiction, (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. The Company will advise FBR Credit Suisse promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference therein, and will furnish Credit Suisse with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file no or use any such amendment or supplement document to which FBR Credit Suisse or counsel for the Underwriter shall object in writing. The Company has given Credit Suisse notice of any filings made pursuant to the Exchange Act within 48 hours prior to the Applicable Time; the Company will give Credit Suisse notice of its intention to make any such filing from the Applicable Time to the time of purchase and, if applicable, each additional time of purchase, and will furnish the Credit Suisse with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Credit Suisse or counsel for the Underwriter shall object in writing.
(d) The Company will advise FBR Credit Suisse promptly and, if requested by FBRCredit Suisse, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) Between the date hereof and February 12, 2010, the Company will not take or authorize any action that would result in an adjustment of the conversion price of the Securities pursuant to the terms of the Securities described in the Prospectus and the General Disclosure Package under the captions “Description of the Notes—Conversion Rights—Conversion Right Adjustments”.
(f) The Company will, promptly upon request, will furnish to FBR and, upon request, to each of the other Underwriters Credit Suisse for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR Credit Suisse may reasonably request regarding the Company, in each case as soon as such communicationcommunications, document documents or information becomes become available.
(fg) The Company will advise the Underwriters Underwriter promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares Registered Securities is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares Registered Securities is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR Credit Suisse or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters Underwriter copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters Underwriter and to dealers copies in such quantities and at such locations as FBR Credit Suisse may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Registered Securities or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances, prevailing at that subsequent time, not misleading, the Company will promptly notify Credit Suisse and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(gh) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's ’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters Underwriter in writing when such statement has been made available.
(hi) The Company will furnish to FBR Credit Suisse a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR Credit Suisse may reasonably request.
(ij) The Company will apply the net proceeds from the sale of the Shares Securities in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(jk) The Company will furnish to FBRCredit Suisse, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(kl) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock stock, except for the sales to the Underwriter pursuant to this Agreement, for a period of 45 30 days after the date hereof (the "Lock-Up Period")hereof, without the prior written consent of FBRCredit Suisse. The foregoing sentence shall not apply to (i) the Shares Underlying Securities pursuant to be sold hereunderthe conversion of the Securities, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the DRSPP, or (iv) the grant of awards pursuant to the Company's existing Discount Waiver’s Long-Term Stock Incentive Plan or issuances pursuant to the exercise of employee stock options or other awards. Notwithstanding the foregoing, Direct Stock Purchase and Dividend Reinvestment Planif (1) during the last 17 days of the 30-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 30-day restricted period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 30-day restricted period, the restrictions imposed in this paragraph (k) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(lm) The Company will use its best efforts to cause each officer and director of the Company to furnish to Credit Suisse, prior to the time of purchase, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree, subject to certain exceptions set forth therein, not to sell, offer, contract to sell, pledge, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock of the Company for a period of 30 days after the date hereof, without the prior written consent of Credit Suisse.
(n) The Company will use its best efforts to cause the Shares Underlying Securities to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(mo) The Company will reserve and keep available at all times, free of pre-emptive rights, the full number of Underlying Securities.
(p) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's ’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Annaly Capital Management Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The Company will to prepare the Offering Memorandum in a form approved by the Initial Purchasers and not to make any amendment or supplement to the Final Memorandum which shall reasonably be disapproved by counsel to the Initial Purchasers promptly after reasonable notice thereof;
(b) to furnish such information as may be required and otherwise will to cooperate in qualifying the Notes and the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR you may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, Notes; provided that the Company shall not be required to qualify as a foreign corporation 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 SharesNotes). The Company will ; and to promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes and the Shares for sale in any jurisdiction or the initiation or threatening threat of any proceeding for such purpose.;
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agreec) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR andfurnish, upon request, to each of the other Underwriters Initial Purchasers for a period of five years from as long as the date of this Agreement Notes are outstanding (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form forms, as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed, listed and (iv) such other public information as FBR you may reasonably request regarding the CompanyCompany or any of the Subsidiaries, in each case as soon as reasonably practicable after such communicationreports, document communications, documents or information becomes become available.;
(fd) The Company will advise to furnish the Underwriters promptly Initial Purchasers with as many copies of the happening of Offering Memorandum, any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information documents incorporated by reference thereintherein and any amendment or supplement thereto as the Initial Purchasers may from time to time reasonably request, so that and if, at any time prior to the Prospectus completion of the resale of the Notes by the Initial Purchasers, any event shall have occurred as a result of which the Offering Memorandum as then amended or supplemented would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were mademade when such Offering Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary or if it is necessary at any desirable during such time to amend or supplement the Prospectus Offering Memorandum, to comply with any law. If within notify the time during which a Prospectus relating to Initial Purchasers and upon the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion request of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit Initial Purchasers to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters Initial Purchasers and to dealers any dealer in securities as many copies in such quantities and at such locations as FBR the Initial Purchasers may from time to time reasonably request of an appropriate amendment to the Registration Statement amended Offering Memorandum or a supplement to the Prospectus Offering Memorandum which will correct such statement or omission or effect such compliance;
(e) to furnish to you as early as reasonably practicable prior to the time of purchase and the 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 certified public accountants, as stated in their letter to be furnished pursuant to Section 7(d) hereof;
(f) at any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and so that long as any of the Prospectus as so amended Notes (or supplemented will notShares issued upon conversion thereof) are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, in for the circumstances when it is so deliveredbenefit of holders from time to time of the Notes, be misleading or so that to furnish at its expense, upon request, to holders of Notes and prospective purchasers of Notes information satisfying the Prospectus will comply with the law.requirements of subsection (d)(4)(i) of Rule 144A;
(g) The Company will make generally available to use its stockholders as soon as practicable, and best efforts to cause the Notes to be eligible for trading in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.PORTAL;
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares Notes in the manner set forth under the caption "Use of Proceedsproceeds" in the Prospectus.Offering Memorandum;
(i) to reserve and keep available at all times free of preemptive rights, Shares for the purpose of enabling the Company to satisfy any obligations to issue Shares upon conversion of the Notes;
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause list, as promptly as practicable but in no event later than the Shares to be listed on time that the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed registration statement is declared effective in accordance with management's authorizationthe Registration Rights Agreement, (ii) transactions are recorded as necessary and subject to permit notice of issuance, the preparation of Shares on the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.Nasdaq National Market;
(nk) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statementeach Preliminary Memorandum, the Prospectus, Final Memorandum and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters Initial Purchasers and to dealers (including costs of mailing and shipment), (ii) the issuancepreparation, sale issue, execution, authentication, transfer and delivery of the Shares by Notes and the CompanyShares, (iii) the qualificationprinting of this Agreement, if anythe Registration Rights Agreement, the Indenture and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Initial Purchasers and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Notes and the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including associated filing fees and the reasonable legal fees and filing fees and other disbursements of counsel to for the UnderwritersInitial Purchasers) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Initial Purchasers and to dealers, (ivv) any listing fees payable to investment rating agencies with respect to the rating of the Shares on the NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASDNotes, (vi) the cost and charges of the Trustee and any transfer agent, registrar or depositary, (vii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering offer and sale of the Shares Notes to prospective investors and the UnderwritersInitial Purchasers' 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 cost of any aircraft chartered in connection with the road show and (viiviii) the performance of the Company's other obligations of the Company hereunder.;
(pl) The Company will not (i) taketo sell, offer or agree to sell, contract to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of, directly or indirectly, prior to termination any Notes or shares of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize Common Stock or manipulate the price of any security of the Company, securities convertible into or which may cause exchangeable or result in, exercisable for Common Stock or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order rights to purchase Common Stock or any other securities of the Company that are substantially similar to the Notes or the Common Stock, or file or cause to be declared effective a registration statement under the Act relating to the offer and sale of any Notes or 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 the Notes or the Common Stock, for a period of ninety (90) days after the date hereof (the "Lock-up Period"), without the prior written consent of UBS Warburg LLC except for (i) the issuance and sale of the Notes pursuant to this Agreement and the issuance of Shares upon conversion of the Notes, (ii) the registration of the offer and sale of the Notes and the Shares pursuant to the Registration Rights Agreement, (ii) issuances of Common Stock upon the exercise of options or warrants or upon the conversion of convertible securities disclosed as outstanding in the Offering Memorandum, (iv) the issuance of stock options not exercisable during the Lock-up Period pursuant to stock option plans described in the Offering Memorandum and (v) the issuance and registration of securities which may be required pursuant to the Company's or the Subsidiaries' currently outstanding agreements which are described in the Offering Memorandum, including without limitation the issuance of Common Stock to Hybridon, Inc. and the registration thereof under the Act. During the first 45 days of the Lock-up Period UBS Warburg LLC may withhold its consent to the actions described in this Section 5(l) for any or no reason. If after the expiration of the first 45 days of the Lock-up Period the average last reported sales price of the Common Stock on the Nasdaq National Market for any five consecutive trading days equals or exceeds $19.95 per share (adjusted for any stock split, combination or similar transaction), then UBS Warburg LLC may not thereafter withhold its consent to such actions unreasonably.
(m) not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act), either directly or by an Affiliate, which could be integrated with the sale of the Notes in a manner which would require the registration under the Act of the offer and sale of the Notes;
(n) not to solicit any offer to buy or offer or sell the Notes or the Shares by means of any form of general solicitation or general advertising (as those terms are used in Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Act;
(o) with respect to those Notes sold in reliance on Regulation S, (i) not to, either directly or by any of its affiliates or any person acting on its or their behalf (other than the Initial Purchasers), engage in any directed selling efforts (within the meaning of Regulation S) and (ii) directly and its affiliates and any person acting on its or their behalf (other than the Initial Purchasers) to comply with the requirements of Regulation S and, during the Distribution Compliance Period, to include in any information provided to publishers of publicly available databases a statement that the Notes are subject to restrictions under Regulation S and Rule 144A;
(p) during the period of two years after the time of purchase or the additional time of purchase, if later, not to directly, nor permit any of its affiliates (as defined in Rule 144 under the Act ("Rule 144")) to, resell any of the Notes or the Shares which constitute "restricted securities" under Rule 144 that have been reacquired by any of them except pursuant to an effective registration statement under the Act;
(q) The Company will not invest to take any action prohibited by Regulation M under the Exchange Act in futures contracts, options on futures contracts or options on commodities unless connection with the Company is exempt from the registration requirements distribution of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Notes contemplated hereby; and
(r) The Company will comply with all of the provisions of any undertakings to file in the Registration Statement.
(s) The Company has been organized and operated in conformity a timely manner a Form D with the requirements for qualification Securities and taxation of the Company as a REIT Exchange Commission pursuant to Regulation D under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions offer and sale of the Sarbanes-Oxley ActNotes.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will SEQ ipLevel1 \h \r SEQ ipLevel5 \h \r SEQ ipLevel4 \h \r SEQ ipLevel3 \h \r SEQ ipLevel2 \h \r ”to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T promulgated by the Commission;
(xd) Xhe Company will to advise FBR the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent (which consent shall not be unreasonably withheld) of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the CompanyCompany and the Subsidiaries (provided that, in each case as soon as such communicationcase, document the filing of same with XXXXX or information becomes available.any successor system of the Commission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder);
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package in order to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated reasonable judgment of the Company or the Representative, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement Representative to the filing (which need consent may not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.unreasonably withheld);
(hl) The Company will to furnish promptly to FBR the Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representative may reasonably request.;
(im) The Company will to apply the net proceeds from of the sale of the Shares issued by the Company in the manner set forth accordance with its statements under the caption "“Use of Proceeds" ” in the Prospectus.Prospectus and the Disclosure Package;
(jn) The Company will furnish to FBRmake generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Exchange Securities Act and during such period will file all such documents (in a manner and within form, at the time periods required by option of the Exchange Act.
(k) The Company will not sellCompany, offercomplying with the provisions of Rule 158 of the Securities Act Regulations), contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for covering a period of 45 12 months beginning after the effective date of the Registration Statement;
(o) to use its best efforts to maintain the listing of the Shares on The Nasdaq Global Market and to file with The Nasdaq Global Market all documents and notices required by The Nasdaq Global Market of companies that have securities that are traded on The Nasdaq Global Market;
(p) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, The Nasdaq Global Market shall have approved the Shares for listing, it will be in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that are then in effect and, with respect to other applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules not currently in effect, the Company will take commercially reasonable steps to ensure that it will be in compliance with such requirements upon and after the effectiveness thereof;
(q) to take all necessary actions to ensure that, upon the Closing Time and each Option Closing Time, it will be in compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder or implementing the provisions thereof that are then in effect and, with respect to other applicable provisions of the Xxxxxxxx-Xxxxx Act not currently in effect, the Company will take commercially reasonable steps to ensure that it will be in compliance with such requirements upon and after the effectiveness thereof;
(r) to engage and maintain, at its expense, a registrar and transfer agent for the Shares;
(s) to refrain, from the date hereof until 180 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representative, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, or (iiB) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, Prospectus or issued under the Company’s Incentive Plan;
(iiit) to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) the granting completion of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable distribution of the Shares within the Lock-Up Period), (iv) the payment in stock to directors meaning of the Company Securities Act and (ii) completion of a portion of their annual or other directors fees, (vthe 180-day restricted period referred to in Section 5(s) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lu) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(qv) The Company will not invest to cause each of the persons listed on Schedule IV hereto to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in futures contracts, options on futures contracts or options on commodities unless the form of Exhibit B hereto (“Lock-Up Letter Agreement”);
(w) that the Company shall obtain or maintain, as appropriate, directors and Officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion;
(x) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Representative advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActRepresentative concerning the substance of, as amended. In additionand disseminate a press release or other public statement, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActRepresentative, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event; and
(ry) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Shimmick Construction Company, Inc.)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that:
(a) The Company will furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR UBSW may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR UBSW of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) ), on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 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 the Third Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.
(xc) Xhe The Company will advise FBR UBSW immediately, 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 Statements or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of any one of the Registration Statement Statements or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR UBSW promptly of any proposal to amend or supplement the Registration Statement Statements or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR UBSW shall object to in writing.
(d) The Company will advise FBR UBSW promptly and, if requested by FBRUBSW, will confirm such advice in writing when any post-effective amendment to any one of the Registration Statement Statements becomes effective under the Securities Act.
(e) The Company will, promptly upon request, will furnish to FBR UBSW and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR UBSW may reasonably request regarding the Company, in each case as soon as such communicationcommunications, document documents or information becomes become available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinwhich, in the light judgment of the circumstances under which they were made, not misleading, Company or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of UBSW or counsel for the Company, FBR or their respective counselUnderwriters, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any lawlaw and, the Company will during such time, to promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR UBSW may from time to time reasonably request of an appropriate amendment to the Registration Statement Statements or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR UBSW a signed copy of the Registration StatementStatements, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR UBSW may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBRUBSW, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock stock, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement and except for issuances of Common Stock upon the exercise of outstanding options, for a period of 45 90 days after the date hereof (the "Lock-Up Period")hereof, without the prior written consent of FBRUBSW. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the DRSPP or (iv) the grant of awards pursuant to the Company's existing Discount Waiver, Direct Long-Term Stock Purchase and Dividend Reinvestment PlanIncentive Plan or issuances pursuant to the exercise of employee stock options or other awards.
(l) The Company will use its best efforts to cause each officer and director of the Company to furnish to UBSW, prior to the time of purchase, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to sell, offer, contract to sell, pledge, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock of the Company for a period of 90 days after the date hereof, without the prior written consent of UBSW.
(m) The Company will use its best efforts to cause the Shares to be listed on the NYSE New York Stock Exchange and to maintain such listing and to file with the NYSE New York Stock Exchange all documents and notices required by the NYSE New York Stock Exchange of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervalsNew York Stock Exchange.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration StatementStatements, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualificationword processing and/or printing of this Agreement, if anyany Agreement among the Underwriters, any dealer agreements, any Statements of Information, the Custody Agreement and the Powers of Attorney, as applicable, and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (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 to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (ivv) any listing of the Shares on the NYSE New York Stock Exchange and any registration thereof under the Exchange Act, (vvi) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration StatementStatements.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst Deloitte & Young Touche LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and the Company's exempt status under the Investment Company Act and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act Code and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to exempt status under the Investment Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Annaly Mortgage Management Inc)
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentative, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.Company or the Partnership that are substantially similar to Common Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares or other rights to purchase Common Shares or any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, for a period of 60 days after the date hereof (the “Lock-Up Period”), without the prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, except for (1) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (2) the issuance of units of limited partnership interest by the Partnership in exchange for properties, (3) the issuance of Common Shares in redemption of units of limited partnership interest, and (4) the issuance of Common Shares or options to purchase Common Shares or Common Shares upon the exercise of options outstanding as of that date of Pre-Pricing Prospectus pursuant to any dividend reinvestment plan, equity incentive, stock option, stock bonus, stock purchase or other stock plan or arrangement described in the Prospectus, but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during the Lock-Up Period without the prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (which consent may be withheld at the sole discretion of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated); 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(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;
(o) to use its best efforts to cause the Common Shares to be listed on the New York Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Common Shares;
(r) The Company will to comply with all of Rule 433(d) under the provisions of any undertakings in Act (without reliance on Rule 164(b) under the Registration Statement.Act) and with Rule 433(g) under the Act;
(s) The 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 has been organized and operated in conformity with or any Subsidiary, the requirements for qualification and taxation financial condition, results of operations, business, properties, assets, or liabilities of the Company as a REIT under or any Subsidiary, or the Codeoffering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business; and
(t) to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2010 and for subsequent its future taxable years.
(t) The Company will not be or become, at any time prior to unless the expiration Board of three years after Trustees determines that it is no longer in the date best interests of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedso qualified.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The to file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rules 430A, 430B or 430C under the Act, to file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Act, if applicable; and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company will with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; and to furnish copies of each Issuer Free Writing Prospectus, if any, (to the extent not previously delivered) to the Placement Agents prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Placement Agents may reasonably request;
(b) to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares; provided, provided however, that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR 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.;
(bc) The Company will prepare to make available to the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of Placement Agents, as soon as practicable after this Agreement or on such other day as the parties may mutually agree becomes effective, and will thereafter from time to time to furnish promptly (and with respect to the initial delivery of such ProspectusPlacement Agents, 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 the parties may mutually agree) to the Underwriters many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters either Placement Agent may reasonably request for request; in case delivery (whether physically or through compliance with Rule 172 under the purposes contemplated by Act or any similar rule) of a prospectus in connection with the Securities sale of the Shares is required after the nine-month period referred to in Section 10(a)(3) of the Act, which and after the Prospectus and any amendments or supplements thereto furnished time a post-effective amendment to the Underwriters will be identical Registration Statement is required pursuant to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Item 512(a) of Regulation S-T.K under the Act, the Company will promptly prepare, at its expense, 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;
(xd) Xhe if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Shares may be sold, the Company will use its reasonable best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective as soon as possible, and the Company will advise FBR immediatelyyou promptly and, if requested by you, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner in accordance with such Rules);
(e) to advise you promptly, 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 Statement, the Prospectus or the Prospectus Time of Sale Information, or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission of any should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the Statement, to use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 its reasonable effort best efforts to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR you promptly of any proposal to amend or supplement the Registration Statement Statement, the Prospectus or the Prospectus including by Time of Sale Information, and to provide you and your counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR you shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (i) copies of any reports or other communications which the Company objection shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may not be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.unreasonable;
(f) The Company will to advise the Underwriters Placement Agents promptly of the happening of any event known to the Company within the time period during which a Prospectus relating to the Shares prospectus 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 would event could require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own ’s expense, to the Underwriters and Placement Agents promptly such amendments or supplements to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise Act) covering a period of twelve months beginning after the Underwriters in writing when date of this Agreement as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR a signed copy you two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.);
(i) The to furnish to you as early as practicable prior to the Time of Sale, 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 will and any 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;
(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.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.;
(k) The Company will whether or not sellthe transactions contemplated by this Agreement are consummated or this Agreement is terminated, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares reimburse the Placement Agent for expenses reasonably incurred by the Placement Agent in connection with the sale of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the ProspectusProspectus and the Time of Sale Information, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters Placement Agents and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares and any fees payable in connection with the settlement systems of the Placement Agents, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Subscription Agreements, 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 Placement Agents 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 to for the UnderwritersPlacement Agents) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Placement Agents and to dealers, (ivv) any listing of the Shares on any securities exchange or qualification of the NYSE Shares for quotation on the Nasdaq and any registration thereof under the Exchange Act, (vvi) the filing, if any, 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 Placement Agents relating to NASD matters, (vivii) 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' Placement Agents’ 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 consultantsconsultants not to exceed Fifty Thousand Dollars ($50,000), (ix) the fees and other disbursements of counsel to the Placement Agents not to exceed One Hundred Fifty Thousand Dollars ($150,000) in the aggregate, and (viix) the performance of the Company's ’s other obligations hereunder.;
(l) to comply with Rule 433(g) under the Act;
(m) beginning on the date hereof and ending on, and including, the date that is 60 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Placement Agents, 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 Exchange Act and the rules and regulations of the Commission promulgated thereunder, 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 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, (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 offer and sale of the Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto) and the Prospectus, (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement (excluding the exhibits thereto) and the Prospectus and (D) the issuance of Common Stock pursuant to employee stock purchase plans described in the Prospectus;
(n) prior to the Closing Date, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets, or liabilities of the Company, or the offering of the Shares, without your prior consent, except as may be required by law, in which case the Company shall use its reasonable best efforts to allow the Placement Agents reasonable time to comment on such release or other communication in advance of such issuance;
(o) not, at any time at or after the execution of this Agreement, to 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 Prospectus or the Time of Sale Information;
(p) The the Company will not, and will cause its Subsidiaries not (i) to, take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Companydesigned, or which may cause or result inwill constitute, or which has constituted, or might in the future reasonably be expected to cause or result in, in the stabilization or manipulation of the price of any security of the Company, Company to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.;
(q) The Company will not invest in futures contracts, options to use its best efforts to cause the Shares to be listed for quotation on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject Nasdaq and to the Commodity Exchange Act, as amended, unless maintain such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.listing; and
(r) The Company will comply with all to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the provisions of any undertakings in Company, a registrar for the Registration StatementCommon Stock.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Placement Agency Agreement (Auxilium Pharmaceuticals Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that:
(a) The Company will furnish prepare the Offering Memorandum in a form approved by the Initial Purchaser and will make no amendment or supplement to the Offering Memorandum which shall reasonably be disapproved by the Initial Purchaser promptly after reasonable notice thereof;
(b) Promptly from time to time, the Company will take such information action as the Initial Purchaser may be required reasonably request to qualify the Notes and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic as the Initial Purchaser may request and foreign) will comply with such laws so as FBR may designate to permit the continuance of sales and to maintain dealing therein in such qualifications in effect so jurisdictions for as long as required for may be necessary to complete the distribution of the SharesNotes; PROVIDED, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or corporation, to file a general consent to the service of process under the laws of or subject itself to any tax in any such jurisdiction (except service of process with respect to the offering and sale of the Shares). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction where it is not now so qualified or the initiation or threatening of any proceeding for such purpose.subject;
(bc) The Company will prepare furnish the Prospectus in a form approved by the Underwriters and file such Prospectus Initial Purchaser with the Commission pursuant to Rule 424(b) under the Securities Act 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 the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agree) to the Underwriters two copies of the Prospectus (Offering Memorandum and each amendment or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements supplement thereto after the effective date of the Registration Statement) and such additional copies thereof in such quantities and at such locations as the Underwriters Initial Purchaser may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminatereasonably request, (ii) copies and if, at any time prior to the completion of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated resale of the Notes by the CommissionInitial Purchaser, (iii) copies of documents or reports filed with but in any national securities exchange on which any class of securities event for no more than nine months after the date of the Company is listedOffering Memorandum, and (iv) such other information as FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to shall have occurred as a result of which the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which Offering Memorandum as then amended or supplemented would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Offering Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary or if it is necessary at any time desirable during such same period to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any lawOffering Memorandum, the Company will promptly notify the Initial Purchaser and upon the Initial Purchaser's request will prepare and furnish without charge to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters Initial Purchaser and to dealers any dealer in securities as many copies in such quantities and at such locations as FBR the Initial Purchaser may from time to time reasonably request of an appropriate amendment to the Registration Statement amended Offering Memorandum or a supplement to the Prospectus so that Offering Memorandum which will correct such statement or omission or effect such compliance;
(d) During the Prospectus as so amended or supplemented period beginning from the date hereof and continuing until the date 90 days after the date of the Offering Memorandum, the Company will not, without the prior written consent of UBS Warburg LLC, sell, contract to sell or otherwise dispose of, any Shares, any securities substantially similar to the Notes or the Shares or any securities that are convertible into or exchangeable for Shares (other than (i) the issuance of the Notes; (ii) the issuance of Shares upon conversion of the Notes; (iii) the issuance of Shares upon conversion or exercise of outstanding convertible or exchangeable securities; (iv) the issuance of Shares or securities convertible into or exchangeable for Shares in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply connection with the law.
(g) The purchase by the Company will make generally available of any business or assets PROVIDED THAT sales by the recipients of such shares are, during the 90 day period referred to its stockholders as soon as practicableabove, and in subject to the manner contemplated by volume limitations of Rule 158 of the Securities Act but in any event not later than 15 months 144, and, PROVIDED, FURTHER, that after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning 30 days after the date upon which of the Prospectus Supplement is filed Offering Memorandum, the Company may issue Shares or securities convertible into or exchangeable for Shares in connection with the purchase by the Company of any business or assets without regard to whether sales by the recipients of such shares are subject to the volume limitations of Rule 144; (v) the issuance of Shares or options pursuant to Rule 424(bemployee stock option or employee stock purchase plans existing on, or upon exercise of warrants outstanding as of, the date of this Agreement; or (vi) under the Securities Act that shall satisfy issuance to UBS Warburg LLC of equity put options in connection with hedging activities and the provisions issuance of Section 11(a) Shares in settlement of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.put options);
(he) The At any time when the Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, is not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant subject to Section 13, 14 13 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and so long as any of the Notes (or Shares issued upon conversion thereof) are "restricted securities" within the meaning of Rule 144(a)(3) under the Act, for the benefit of holders from time periods required by to time of the Exchange Act.
(k) The Notes, the Company will not sellfurnish at its expense, offerupon request, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares holders of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Notes and prospective purchasers of capital stock for a period of 45 days after the date hereof Notes information (the "Lock-Up PeriodADDITIONAL ISSUER INFORMATION"), without ) satisfying the prior written consent requirements of FBR. The foregoing sentence shall not apply to subsection (id)(4)(i) of Rule 144A under the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Act;
(lf) The Company will use its best efforts to cause the Shares Notes to be listed on eligible for PORTAL;
(g) For so long as the NYSE Notes remain outstanding, the Company will furnish to the Initial Purchaser copies of all reports or other communications (financial or other) furnished to stockholders of the Company, and will deliver to maintain such listing the Initial Purchaser (i) as soon as they are available, copies of any reports and financial statements furnished to file or filed by the Company with the NYSE all documents Commission or any securities exchange on which the Notes or any class of securities of the Company is listed; and notices required by (ii) such additional information concerning the NYSE business and financial condition of companies that have securities that the Company as the Initial Purchaser may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are listed on consolidated in reports furnished to its stockholders generally or to the NYSE.Commission);
(mh) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that use the net proceeds received by it from the sale of the Notes pursuant to this Agreement in the manner specified in the Offering Memorandum under the caption "Use of Proceeds";
(i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage reserve and maintainkeep available at all times free of preemptive rights, at its expense, a registrar and transfer agent Shares for the Shares.purpose of enabling the Company to satisfy any obligations to issue Shares upon conversion of the Notes;
(oj) The Company will use its best efforts to list, as promptly as practicable but in no event later than the time that the registration statement is declared effective in accordance with the Registration Rights Agreement, and subject to notice of issuance, the Shares on the American Stock Exchange;
(k) The Company will pay all expenses, fees and taxes (other than any transfer taxes taxes, and fees and expenses of the Initial Purchaser including, without limitation, disbursements of counsel for the Underwriters, Initial Purchaser except as set forth under Section 5 6 hereof or in clause and (iii) or and (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, Offering Memorandum and the printing and furnishing of copies of each thereof to the Underwriters Initial Purchaser and to dealers (including costs of mailing and shipment), (ii) the preparation, issuance, sale execution, authentication and delivery of the Shares by Notes and the CompanyShares, (iii) the qualificationword processing and/or printing of the Indenture, if anyand the reproduction and/or printing and furnishing of copies thereof to the Initial Purchaser and to dealers (including costs of mailing and shipment), (iv) the qualification of the Notes and 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 to for the UnderwritersInitial Purchaser) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Initial Purchaser and to dealers, (ivv) any listing of the Shares Notes on the NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASDPORTAL, (vi) any fees payable to investment rating agencies with respect to 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, Notes and (vii) the performance of the Company's other obligations hereunder.
(pl) The Company will not take reasonable precautions designed to insure that any offer or sale, direct or indirect, in the United States or to any U.S. person (ias defined in Rule 902 under the Act) takeof any Notes or any substantially similar security issued by the Company, directly or indirectly, prior within six months subsequent to termination the date on which the distribution of the underwriting syndicate Notes has been completed (as notified to the Company by the Initial Purchaser), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S. persons contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than Agreement as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is transactions exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code Act (the foregoing will not prevent offers and (ii) sales made pursuant to otherwise assist the Company a shelf registration statement in monitoring appropriate accounting systems and procedures designed to determine compliance accordance with the REIT provisions of the CodeRegistration Rights Agreement).
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Purchase Agreement (Ivax Corp /De)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that:agrees: --------------------------------
(a) The Company To file or mail for filing with the Commission in the manner prescribed by Rule 424 under the Act copies of the Prospectus in the form approved by the Representatives and to make no further amendments or supplements to the Registration Statement or Prospectus after the date hereof and prior to the Closing Date without the prior consent of the Representatives which will furnish such information as may not unreasonably be required withheld:
(b) To use its best efforts to qualify the Bonds and otherwise will cooperate to assist in qualifying the Shares qualification of the Bonds by or on behalf of the Representatives for offering offer and sale under the securities or blue sky laws of such states and other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect reimburse the Representatives for fees and out-of-pocket expenses paid by them or on their behalf to so long as required qualify the Bonds for the distribution of the Shares, offer and sale; provided that the Company shall not be required to qualify as a foreign corporation or to file a general 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or pay or reimburse the initiation or threatening of any proceeding Representatives for such purpose.fees and expenses in an amount aggregating in excess of $12,000; and to prepare and file, from time to time, such statements and reports as are or may be required of it as the issuer of the Bonds to continue such qualifications under such blue sky laws in effect for so long a period as the Representatives may reasonably request;
(bc) The Company will prepare To furnish to each Representative one signed copy of the Prospectus Registration Statement and of all amendments thereto (including all exhibits except those incorporated by reference), one signed copy (which may be included in a form approved the Registration Statement or amendments thereto) of each consent and certificate or opinion of independent public accountants and of each other person whose profession gives authority to statements made by him and who is named in the Underwriters Registration Statement as having prepared, certified or reviewed any part thereof, and file to furnish the Representatives sufficient unsigned copies of the foregoing (other than exhibits) for distribution of one such Prospectus with copy to itself and each of the Commission pursuant to Rule 424(bother Underwriters;
(d) under the Securities Act 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 the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agree) To deliver to the Underwriters without charge, as soon as practicable after the date hereof, and from time to time for period of nine months thereafter, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made and any amendments or supplements thereto after the effective date of the Registration Statementthereto) in such quantities and at such locations as the respective Underwriters or the Representatives may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.;
(xe) Xhe Company will To advise FBR immediately, the Representatives promptly (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 official request made by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect theretothereto and of official notice of institution of proceedings for, (iii) or the issuance by the Commission of any entry of, a stop order suspending the effectiveness of the Registration Statement Statement, or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) the initiation, threatening or contemplation of any proceedings for any of such purposes and, and if the Commission or any other governmental agency or authority should issue any such orderorder should be entered by the Commission, the Company will to make every reasonable effort to obtain the lifting or removal of such order thereof as soon as possible. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.;
(f) The Company will To advise the Underwriters Representative promptly of the happening any order or action of any event known court or the Commission and of any order or communication of a public authority addressed to the Company within suspending, or threatening to suspend, the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making qualification of any change in of the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements thereinBonds for sale and, in the light event of any order preventing the offering or sale of any of the circumstances under which they were made, not misleading, or if it is necessary at any time Bonds promptly to amend or supplement use its best efforts to obtain the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion withdrawal of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.order;
(g) The Company will make generally available To apply an amount equal to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in Bonds for the manner purposes set forth under the caption "Use of Proceeds" in the Prospectus.;
(h) As long as any of the Bonds shall remain outstanding, to furnish the Representative and each of the other Underwriters on its request, as soon as practicable, (i) copies of any published reports of the Company, including the annual report and quarterly reports of the Company to its shareholders, and (ii) copies of earnings statements of the Company after the end of each of the first three quarters of the fiscal year;
(i) As soon as practicable, to make generally available to its security holders and deliver to each of the Underwriters, on request, a copy of an earning statement covering a period of at least twelve months beginning after the effective date of the Registration Statement (as that term is defined in Rule 158 under the Act), which earning statement shall be in such form and of such substance as may be necessary to condition the right of recovery as provided in the last paragraph of Section 11(a) of the Act;
(j) The Company will furnish to FBR, not less than two Business Days before So long as the Act requires the use of a filing prospectus in connection with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) sale of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will Bonds, but not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days longer than nine months after the date hereof (the "Lock-Up Period")hereof, without the prior written consent if any event shall have occurred as a result of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements, in light of the circumstances under which they are made, not misleading, the Company will notify the Representatives and, upon the request of the Representatives (iii) the granting of options pursuant if made within such period), will forthwith prepare and furnish to each Underwriter and to any dealer in securities, a supplement to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual Prospectus or other directors fees, (v) the filing of any shelf registration an amended prospectus which will correct such statement after thirty days or omission. After nine months from the date hereof, (vi) the filing of any registration statement, including prospectus or supplement thereto or amended prospectus required by any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to Underwriter will be instituted supplied by the Company or (vii) shares company at the request of Common Stock issued pursuant to such Underwriter but only at the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.expense of such Underwriter;
(lk) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will To pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, Statement and the printing and furnishing of the copies of the Registration Statement, each thereof to Preliminary Prospectus, the Underwriters Prospectus and to dealers this agreement (including costs of mailing any attached and shipment)related agreements) required by the Underwriters, (ii) the issuance, sale issue and delivery of the Shares by Bonds to the CompanyUnderwriters, (iii) the qualification, if any, qualification of the Shares for offering and sale Bonds under state the blue sky laws and the determination of their eligibility for investment under state law as aforesaid (subject to the legal limits on such expenses and fees specified in subparagraph (b) of this paragraph 8) and filing fees all registrations and other disbursements listings of the Bonds, and (iv) the furnishing of the opinions of counsel to the Underwriters) Company, certificates and letters of the independent public accountants and the printing certificates referred to in paragraph 9 hereof;
(l) To pay the fees and furnishing expenses of copies of any blue sky surveys or legal investment surveys to Counsel for the Underwriters and to dealers, (iv) any listing reimburse the Underwriters for their reasonable out-of-pocket expenses incurred in contemplation of the Shares on performance of this agreement in the NYSE event that the Underwriters hereunder do no take up and pay for any registration thereof of the Bonds for a reason expressly permitted by the terms of this agreement, the Underwriters agreeing to pay such fees and expenses in any other event, except as herein otherwise specifically provided;
(m) Between the date hereof and the Closing Date, not to offer or sell any securities under the Exchange ActIndenture, other than pursuant to the terms of this agreement; and
(vn) That the filing, if any, for review Board of the public offering of the Shares by the NASD, (vi) the costs and expenses Directors 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time adopt prior to the expiration of three years after Closing Date resolutions in form and contents satisfactory to Counsel for the date Underwriters creating the terms and authorizing the issuance of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated Bonds pursuant to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedIndenture.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (San Diego Gas & Electric Co)
Certain Covenants of the Company. The Company hereby covenants and agrees the Operating Partnership, jointly and severally, agree with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. p.m. (New York City time) ), on or before the second Business Day following the date of this Agreement June 14, 2016 or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. (p.m. New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company willextent not available on EXXXX, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, FINRA or any securities exchange and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Registration Statement, the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Registration Statement, the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company will or the Representative, be required by the Securities Act or requested by the Commission;
(k) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Representative to the filing;
(l) during the period referred to in paragraph (i) above, to file all such documents in the manner and within the time periods required by the Exchange Act and the Exchange Act Regulations;
(m) to apply the net proceeds of the sale of the Shares in accordance with its statements under the caption “Use of Proceeds” in the Registration Statement, the Prospectus and the Disclosure Package;
(n) to make generally available to its stockholders security holders and to deliver to the Representative as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy complying with the provisions of Section 11(a) of the Securities Act and (in form, at the option of the Company, complying with the provisions of Rule 158 thereunder and will advise of the Underwriters in writing when such statement has been made available.
(hSecurities Act Regulations,) The Company will furnish to FBR covering a signed copy period of 12 months beginning after the effective date of the Registration Statement, as initially filed ;
(o) to use its best efforts to maintain the listing of the Shares on the NYSE and to file with the Commission, NYSE all documents and notices required by the NYSE of all amendments thereto companies that have securities that are listed on the NYSE;
(including all exhibits thereto and documents incorporated by reference thereinp) and such number to promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from completion of the sale distribution of the Shares in within the manner set forth under meaning of the caption "Use Securities Act and (ii) completion of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the 90-day restricted period referred to in paragraph (fSection 4(s) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.hereof;
(kq) The Company will not sellto refrain, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 from the date hereof until 90 days after the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Representative, from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or 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. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, hereunder (iiB) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iiiC) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver2014 Director Equity Plan or the 2016 Equity Incentive Plan referred to in the Registration Statement, Direct Stock Purchase the General Disclosure Package and Dividend Reinvestment Plan.the Prospectus or (D) the filing of any registration statement on Form S-8;
(lr) The Company will not to, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationaffiliates not to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.;
(s) The Company has been organized to cause each officer and operated in conformity with the requirements for qualification and taxation director of the Company to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree to the lock-up provisions as set forth in Exhibit A; and
(t) that the Company will continue to use its best efforts to meet the requirements to qualify as a REIT under the Code, and the Company's proposed methods of operation will enable ; and
(u) neither the Company to continue to meet nor any of the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or becomeSubsidiaries is and, at any time prior after giving effect to the expiration of three years after the date offering and sale of the AgreementShares, will be an "“investment company," ” or an entity “controlled” by an “investment company”, as such term is terms are defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR you may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will to prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agree) make available to the Underwriters in New York City, as soon as practicable, 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 the 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 any Underwriter is required to deliver a prospectus within the nine-month period referred to in Section 10(a)(3) of the Act in connection with the sale of the Shares, the Company will prepare promptly upon request, but at the expense of such Underwriter, such amendment or amendments to the Registration Statement and such prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such advice in writing, when any post-effective amendment thereto becomes effective and when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Prospectus and any amendments or supplements thereto furnished Company agrees to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.file in a timely manner under such Rule);
(xd) Xhe Company will to advise FBR immediatelyyou promptly, 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 or the Prospectus or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 orderenter a stop order suspending the effectiveness of the Registration Statement, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference reference, and to file no such amendment or supplement to which FBR you shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The if necessary or appropriate, to file a registration statement pursuant to Rule 462(b) under the Act within the applicable time period prescribed for such filing by Rule 462(b), and the Company willshall, promptly upon requestat the time of such filing, either pay to the Commission the filing fee for such registration statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
(f) to furnish to FBR you and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR you may reasonably request regarding the CompanyCompany or its Subsidiaries, in each case as soon as such communicationreports, document communications, documents or information becomes available.;
(fg) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference thereinreference, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary and, during such time, to prepare promptly, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company’s expense, FBR such amendments or their respective counsel, would require the making of any change in the supplements to such Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to as may be stated therein or necessary to make the statements therein, in the light reflect any such change and to furnish you a copy of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Commission;
(gh) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) of the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than 60 days after the close of such twelve-month period;
(hi) The Company will to furnish to FBR its stockholders within 120 days after the end of each fiscal year, for so long as the Company shall not be required to file annual and periodic reports with the Commission under the Exchange Act, audited financial statements (including a balance sheet and statements of income, stockholders’ equity and of cash flow of the Company for such fiscal year), accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants;
(j) to furnish to you three signed copy copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of sufficient conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.for distribution of a copy to each of the other Underwriters;
(ik) The to furnish to you as early as practicable prior to the Closing Date and the Option Closing Date, 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 will and its 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;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed to comply with all provisions of any undertakings contained in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.Registration Statement;
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, Underwriters except as set forth under Section 5 hereof or in clause and (iii) or ), (iv) and (vi) below) in connection with (i) the preparation and filing of the Registration Statement, any 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 issuanceregistration, issue, sale and delivery of the Shares by the CompanyShares, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any powers of attorney, any custody 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 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 to 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, (ivv) any listing of the Shares on any securities exchange or qualification of the NYSE Shares for quotation on NASDAQ and any registration thereof under the Exchange Act, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASD, (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 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, NASD and (vii) the performance of the Company's ’s other obligations hereunder.;
(o) to furnish to you, subject to the requirements of Regulation FD under the Exchange Act, before filing with the Commission subsequent to the effective date of the Registration Statement and for so long as a prospectus is required to be delivered in connection with the offering or delivery of the Shares, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(p) The Company will not (i) taketo sell, offer or agree to sell, contract to sell, grant any option to sell or otherwise dispose of, directly or indirectly, prior any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to termination purchase Common Stock or any other securities of the underwriting syndicate contemplated by Company that are substantially similar to Common Stock or permit the registration under the Act of any shares of Common Stock, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement or any Equity Distribution Agreement between the Company and UBS Securities LLC, and except for options granted pursuant to employee benefit plans, which plans are existing on the date of this Agreement, and for shares of Common Stock issuable upon the exercise of such outstanding options for a period of 90 days after the date hereof, without the prior written consent of UBS Securities LLC, on behalf of the Underwriters;
(q) to use its best efforts to cause the Shares to be listed on the NYSE; and
(r) not at any time, directly or indirectly, to take any action designed to stabilize or manipulate the price of any security of the Companyintended, or which may might reasonably be expected, to cause or result in, or which might in the future reasonably be expected to cause or result inwill constitute, the stabilization or manipulation of the price of any security the shares of the Company, Common Stock to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will ; and not invest in futures contracts, options on futures contracts or options on commodities commodities, unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amendedamended (the “Commodity Act”), or otherwise complies with the Commodity Exchange Act, as amended. In addition, the The Company will not engage in any activities which might be subject to bearing on the Commodity Exchange Act, as amended, unless such activities are exempt from that act the Commodity Act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Commodity Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Impac Mortgage Holdings Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR UBS Warburg may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR UBS Warburg of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.
(xc) Xhe The Company will advise FBR UBS Warburg immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR UBS Warburg promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR UBS Warburg shall object to in writing.
(d) The Company will advise FBR UBS Warburg promptly and, if requested by FBRUBS Warburg, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, will furnish to FBR UBS Warburg and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR UBS Warburg may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR UBS Warburg or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR UBS Warburg may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's ’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR UBS Warburg a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR UBS Warburg may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBRUBS Warburg, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 90 days after the date hereof (the "“Lock-Up Period"”), without the prior written consent of FBRUBS Warburg. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated ’s 1997 Employee Stock Option Plan (not to exceed 500,000 400,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's ’s existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plandividend reinvestment plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's ’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's ’s consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's ’s authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's ’s other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's ’s proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "“investment company," ” as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the SarbanesXxxxxxxx-Oxley Xxxxx Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's ’s rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's ’s management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the SarbanesXxxxxxxx-Oxley Xxxxx Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatagrees:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares Securities for offering and sale by the Company under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Agent may designate and to maintain such qualifications in effect so long as required the Agent may request for the distribution of the Shares, Securities; provided that the Company shall not be required to qualify as a foreign corporation or corporation, 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). The Company will Securities 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 FBR the Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect make available to the initial 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 the parties may mutually agree) to the Underwriters Agent 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 effective respective dates of such documents); to furnish the Agent, without charge, during the period beginning on the date hereof and ending on the later of the Registration Statement) time of purchase or such date, as in such quantities and at such locations as the Underwriters may reasonably request opinion of counsel for the purposes contemplated Agent, the Prospectus Supplement is no longer required by law to be delivered in connection with sales by the Securities ActAgent, which as many copies of the Prospectus and any amendments or and supplements thereto furnished to (including any Incorporated Documents) as the Underwriters will be identical to Agent may reasonably request.
(c) if, at the version created time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment thereto to be transmitted declared effective before the Securities may be sold in the Offering, the Company will endeavor to cause the Commission for filing via EDGAR, except Registration Statement or such post-effective amendment to become effective as soon as possible and the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediatelythe Agent promptly and, if requested by the Agent, will confirm such advice in writing when the Registration Statement and any such post-effective amendment thereto has become effective;
(d) to advise the Agent promptly, 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 Commission, made prior to the time of purchase, for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, (iii) or of notice of institution of proceedings for, or the issuance by entry of a stop order, made prior to the Commission time of any stop order purchase, suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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 orderenter a stop order prior to the time of purchase suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to use its best efforts to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Prospectus, made prior to the time of purchase, including by filing any documents that would be incorporated therein by reference reference, to provide the Agent and its counsel copies of any such documents for review and comment a reasonable amount of time prior to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.proposed filing;
(e) The Company will, promptly upon request, furnish subject to FBR and, upon requestSection 4(d) hereof, to each of file promptly all reports and any definitive proxy or information statement required to be filed by the other Underwriters for a period of five years from Company with the Commission in order to comply with the Exchange Act subsequent to the date of this Agreement (i) copies the Prospectus and for so long as the delivery of any reports or other communications which the Company shall send a prospectus is required to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed be delivered in connection with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Offering;
(f) The Company will to advise the Underwriters Agent promptly of the happening of any event known to the Company within the time during which a Prospectus relating to prospectus for the Shares Offering is required to be delivered under the Securities Act Act, which would require requires the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading, or if it is necessary at any time and, during such time, subject to amend or supplement the Prospectus Section 4(d) hereof, to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and Agent promptly such amendments or supplements to dealers copies in such quantities and at Prospectus as may be necessary to reflect any such locations as FBR may from time to time reasonably request of an appropriate amendment to 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 the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.which you reasonably object;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterAgent, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will furnish for so long as a prospectus is required to FBR a signed copy of be delivered under the Act in connection with the Offering, to comply with all the undertakings contained in the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.;
(i) The Company will to apply the net proceeds from the sale of the Shares Securities in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will furnish without duplication, to FBR, not less than two Business Days before a filing with reimburse the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable Agent for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders expenses in accordance with Section 4 of the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE Engagement Letter and to maintain such listing and to file with the NYSE pay all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Companycosts, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus Supplement and Prospectus Supplement, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers Agent (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares Securities including any stock or transfer taxes and stamp or similar duties payable by the CompanyCompany upon the sale, issuance or delivery of the Securities sold by the Company in the Offering, (iii) the qualificationproducing, if anyword processing and/or printing of this Agreement, any Purchase 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 Agent and the Purchasers, (iv) the qualification of the Shares 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 disburs- ements of counsel to for the UnderwritersAgent) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters Agent and to dealers, (ivv) any listing qualification of the Shares Securities for quotation on the NYSE Nasdaq and any registration thereof under the Exchange Act, (vvi) the filing, if any, fees and disbursements of any transfer agent or registrar for review of the public offering of the Shares by the NASDSecurities, (vivii) 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 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 consultantsSecurities, and (viiviii) the performance of the Company's other obligations hereunder.;
(pk) The Company will until the completion of the distribution of the Shares in the Offering, not (i) to take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, that would constitute or which may cause or result in, or which might in the future that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company, Company to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.Securities; and
(ql) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage timely, and in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time event prior to the expiration time of three years after purchase, file this Agreement and the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance Agent's Warrant with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring Commission on an appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Codeform.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Agency Agreement (Biopure Corp)
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representative of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. 4:00 p.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. 4:00 p.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentative, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares or other rights to purchase Common Shares or any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, for a period of 60 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for (1) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (2) the issuance of units of limited partnership interest by the Partnership in exchange for properties, (3) the issuance of Common Shares in redemption of units of limited partnership interest, and (4) the issuance of Common Shares or options to purchase Common Shares or Common Shares upon the exercise of options outstanding as of that date of Pre-Pricing Prospectus pursuant to any dividend reinvestment plan, equity incentive, stock option, stock bonus, stock purchase or other stock plan or arrangement described in the Prospectus, but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during the Lock-Up Period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives); 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(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; for the avoidance of doubt, this Section 4(n) shall not prohibit or restrict in any way any offering and sale by the Company of preferred shares of beneficial interest that are not convertible into Common Shares and are otherwise similar to the Company.’s Series A Preferred Shares;
(o) to use its best efforts to cause the Common Shares to be listed on the New York Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Common Shares;
(r) The Company will to comply with all of Rule 433(d) under the provisions of any undertakings in Act (without reliance on Rule 164(b) under the Registration Statement.Act) and with Rule 433(g) under the Act;
(s) The 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 has been organized and operated in conformity with or any Subsidiary, the requirements for qualification and taxation financial condition, results of operations, business, properties, assets, or liabilities of the Company as a REIT under or any Subsidiary, or the Codeoffering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business; and
(t) to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2010 and for subsequent its future taxable years.
(t) The Company will not be or become, at any time prior to unless the expiration Board of three years after Trustees determines that it is no longer in the date best interests of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedso qualified.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company Company, the Operating Partnership and the Financing Partnership hereby covenants and agrees agree with each of the Underwriters thatUnderwriter:
(a) The Company will a. to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Underwriter may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect ;
b. to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus and Prospectus Supplement in a form approved by the Underwriters Underwriter and file such Prospectus and Prospectus Supplement with the Commission pursuant to Rule 424(b) under of the Securities Act Regulations not later than 10:00 A.M. a.m. (New York City Washington, D.C. time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such ProspectusProspectus and Prospectus Supplement, not later than 10:00 A.M. a.m. (New York City Washington, D.C. time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) to the Underwriters Underwriter as many copies of the Prospectus and the Prospectus Supplement (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and Prospectus Supplement and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be electronically transmitted to copies thereof filed with the Commission for filing via EDGARpursuant to EDGAX, except xxcept to the extent permitted by Regulation S-T.T;
c. to advise the Underwriter promptly and (xif requested by the Underwriter) Xhe Company will to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
d. to advise FBR immediatelythe Underwriter promptly, 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 or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus, (iv) the Prospectus Supplement or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Underwriter shall reasonably object to in writing.;
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment e. to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters Underwriter for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Preferred Shares, (ii) as soon as practicable after the filing thereof; copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents the NASD or reports filed with any national securities exchange on which any class of securities of the Company is listedexchange, and (iviii) such other information as FBR the Underwriter may reasonably request regarding the Company, in each case as soon as such communicationthe Operating Partnership, document or information becomes available.the Financing Partnership and the Significant Subsidiaries;
(f) The Company will f. to advise the Underwriters Underwriter promptly of the happening of any event known to the Company Company, the Operating Partnership, or the Financing Partnership within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating Company's expense, to the Shares is required Underwriter promptly such amendments or supplements to such Prospectus as may be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at reflect any time such change and to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies Underwriter a copy of the such proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter Commission;
g. to furnish promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Underwriter a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference thereinthereto) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriter may reasonably request.;
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will h. to furnish to FBRthe Underwriter, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act;
i. the Company will apply the net proceeds of the sale of the Shares in accordance with its statements under the caption "Use of Proceeds" in the Prospectus;
j. to make generally available to its security holders as soon as practicable an earning statement (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) of the Company and during such its Significant Subsidiaries covering a period will of 12 months beginning after the effective date of the Registration Statement;
k. to use its best efforts to effect and maintain the quotation of the Shares on the New York Stock Exchange and to file with the New York Stock Exchange all such documents in a manner and within the time periods notices required by the New York Stock Exchange Act.of companies that have securities that are traded in the New York Stock Exchange and quotations for which are reported by the New York Stock Exchange;
(k) The Company will not sell, offer, contract l. to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for refrain during a period of 45 180 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRthe Underwriter, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of or otherwise disposing of or transferring, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of the Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by ;
m. the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause meet the Shares requirements to be listed on continue to qualify as a "real estate investment trust" under the NYSE Code;
n. the Company and to maintain such listing and to file with the NYSE all documents and notices required Operating Partnership will not invest, reinvest or otherwise use the proceeds received by the NYSE of companies that have securities that are listed on Company or the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit Operating Partnership from the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares in such a manner, or take any action or omit to prospective investors and take any action, that would cause the Underwriters' sales forcesCompany, includingthe Operating Partnership, without limitation, expenses associated with or the production of road show slides and graphics, fees and expenses of any consultants engaged by Financing Partnership to become an "investment company" as that term is defined in the investment Company Act;
o. neither the Company in connection with nor the road show presentations, travel, lodging and other expenses incurred by Operating Partnership nor the officers of the Company and any such consultants, and Financing Partnership will (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (iA) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or to result in, or which that might in the future reasonably be expected to cause or result inconstitute, the stabilization or manipulation of the price of any security of the Company, Company to facilitate the sale or resale of any of the Shares, (iiB) sell, bid for, for or purchase the Shares or pay any Person (other than as contemplated by the provisions hereof) person any compensation for soliciting purchases purchase of the Shares, or (iiiC) pay or agree to pay to any Person person any compensation for soliciting any order another to purchase any other securities of the Company.; and
(q) The Company will not invest in futures contracts, options p. on futures contracts or options on commodities unless prior to the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In additionClosing Time, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information cause Articles Supplementary relating to the Company is made known Preferred Shares to them by others within those entities, particularly during be filed for record with the period SDAT in which such periodic reports are being prepared.
(x) The Company will comply accordance with all effective applicable provisions the laws of the Sarbanes-Oxley ActState of Maryland.
Appears in 1 contract
Samples: Underwriting Agreement (Crown American Realty Trust)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the Securities Act not later than 10:00 A.M. (New York City time) time period prescribed by law, on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act.Act or requested by the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in promptly such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement amendments or supplement supplements to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(gi) The Company will make generally available to its stockholders as soon as practicable, and in furnish promptly to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(ij) The Company will to furnish to the Underwriters, not less than two business days before filing with the Commission, subsequent to the effective date of the Prospectus and during any period of time in which a prospectus relating to the Shares is required to be delivered under the Securities Act Regulations, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(k) to apply the net proceeds from of the sale of the Shares substantially in the manner set forth accordance with its statements under the caption "Use of Proceeds" in the Prospectus.;
(jl) The Company will furnish to FBRmake generally available to its security holders as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning on the effective date of the Registration Statement
(m) to use its best efforts to effect and maintain the listing of the Shares on the New York Stock Exchange Act and during such period will to file with the New York Stock Exchange all such documents in a manner and within the time periods notices required by the New York Stock Exchange Act.of companies that have securities that are listed on the New York Stock Exchange;
(kn) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to except in the Prospectus, ordinary course of business in connection with (iiix) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), ________ options) and (ivy) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing to refrain during a period of any shelf registration statement after thirty 180 days from the date hereofof the Prospectus, without the prior written consent of the Representatives, from (vii) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan Shares to be instituted sold hereunder, or (B) any Common Shares issued by the Company upon the exercise of an option outstanding on the date hereof or upon the exercise of any option granted in the ordinary course of business as provided herein;
(viio) shares the Company will maintain a transfer agent and, if necessary under the jurisdiction of Common Stock issued pursuant to formation of the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(lp) The the Company will use its best efforts to cause continue to meet the requirements to qualify as a real estate investment trust under the Code;
(q) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(r) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act;
(s) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be listed materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, in compliance with the Securities Act, the Securities Act Regulations and other applicable laws and reasonably satisfactory to the Representatives, responding to or commenting on the NYSE and such rumor, publication or event; and
(t) to maintain such listing and to file with the NYSE all documents and notices required by the NYSE a system of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.
(n) The Company will engage intervals and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection appropriate action is taken with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay respect to any Person any compensation for soliciting any order to purchase any other securities of the Companydifferences.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (America First Mortgage Investments Inc)
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters Underwriter 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 City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to the Underwriters Underwriter copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(xc) Xhe the Company will advise FBR immediatelythe Underwriter, 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 or the Prospectus or for additional information with respect thereto, (iii) iii)a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Underwriter shall object to in writing.
(d) The the Company will advise FBR the Underwriter promptly and, if requested by FBRthe Underwriter, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Underwriter promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Underwriter or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters Underwriter copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters Underwriter and to dealers copies in such quantities and at such locations as FBR the Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterto deliver to you, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than March 31, 2005;
(h) The Company will to furnish to FBR a signed copy its shareholders as soon as practicable after the end of the Registration Statement, as initially filed with the Commission, and of all amendments thereto each fiscal year an annual report (including all exhibits thereto a consolidated balance sheet and documents incorporated by reference therein) statements of income, shareholders' equity and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets cash flow of the Company, (iii) access to the assets Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts certificate or report thereon of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 shipmentnationally recognized independent certified public accountants), (ii) the issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.;
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatJoint Sponsors, the Joint Global Coordinators, the Joint Bookrunners, the Joint Lead Managers and the International Underwriters:
(a) The Company will furnish to take such information action as may be required by the Joint Global Coordinators and otherwise will cooperate in qualifying the Joint Sponsors to qualify the Offer Shares for offering and sale under the securities or blue sky laws Laws of such jurisdictions (both domestic and foreign) as FBR the Joint Global Coordinators or the Joint Sponsors may designate and comply with such Laws so as to maintain permit the continuance of sales and dealings therein in such qualifications in effect so jurisdictions for as long as required for may be necessary to complete the distribution of the Offer Shares, provided provided, however, that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of in any such jurisdiction (except service of process with respect to the offering and sale of the Offer Shares). The Company will ; and to promptly advise FBR the Joint Global Coordinators and the Joint Sponsors of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offer Shares for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will to (A) promptly prepare each of the Pricing Disclosure Package and Prospectus in a form approved by the Underwriters Joint Global Coordinators and the Joint Sponsors and to file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, (B) advise the Joint Global Coordinators and the Joint Sponsors, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish the Joint Global Coordinators and the Joint Sponsors with copies thereof, (C) file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act, and (D) make no further amendment or supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery which shall be disapproved by the Joint Global Coordinators and the Joint Sponsors promptly after reasonable notice thereof;
(c) to furnish or make available without charge to the Joint Global Coordinators and the International Underwriters, prior to 9:00 a.m., New York City time) , on or before the second Business Day following business day next succeeding the date of this Agreement or on such other day as the parties may mutually agree hereof and will furnish promptly (thereafter from time to time, written and with respect to the initial 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 the parties may mutually agree) to the Underwriters electronic copies of the Pricing Disclosure Package and the Prospectus (and of each amendment or of the Prospectus as amended or supplemented supplement thereto if the Company shall have made any amendments such amendment or supplements thereto after the effective date of the Registration Statementsupplement) in such quantities and at in such locations jurisdictions as the Joint Global Coordinators or the International Underwriters may from time to time reasonably request for the purposes contemplated by the Securities Actrequest, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) the initiation, threatening or contemplation of any proceedings for any of such purposes and, if the Commission delivery of a prospectus (or any other governmental agency or authority should issue any such orderin lieu thereof, the Company will make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object notice referred to in writing.
(dRule 173(a) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish is required at any time prior to FBR and, upon request, to each the expiration of nine months after the time of issue of the other Underwriters for Prospectus in connection with the offering or sale of the Offer Shares and if at such time any event shall have occurred as a period result of five years from the date of this Agreement (i) copies of any reports or other communications which the Company shall send to its stockholders Prospectus as then amended or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which supplemented would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or or, if for any other reason it is shall be necessary at any time during such same period to amend or supplement the Prospectus in order to comply with the Securities Act, to notify you and upon your request to prepare and furnish without charge to each International Underwriter and to any law. If within the dealer in securities as many written and electronic copies as you may from time during which to time reasonably request of an amended Prospectus or a Prospectus relating supplement to the Shares Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to be delivered deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act Act) in connection with sales of any of the Offer Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such International Underwriter, to prepare and deliver to such International Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) to procure, subject to any waiver granted by the SEHK, that no connected person (as defined in the Listing Rules) of the Company will itself (or through a company controlled by it), apply to purchase International Offer Shares either in its own name or through nominees unless permitted to do so under the Listing Rules, and if the Company shall become aware of any application or indication of interest for International Offer Shares by any connected person, controlled company or nominee, it shall forthwith notify the Joint Sponsors and the Joint Global Coordinators (on behalf of the International Underwriters);
(e) to advise the Joint Global Coordinators and the Joint Sponsors promptly if at any time prior to the later of the Option Expiration Date (as defined below) and the date on which the Joint Global Coordinators notify the Company that the distribution of the International Offer Shares is complete:
(A) any event shall occur or condition any circumstance shall exist whichwhich renders or could render untrue, inaccurate or misleading in the reasonable opinion any respect any of the Companyrepresentations and warranties and other statements of the Company herein; any event shall occur or any circumstance shall exist which give rise or could give rise to a claim under any of the indemnities (to the extent applicable) as contained in, FBR or their respective counselgiven pursuant to, would this Agreement; or
(B) any event shall occur or any circumstance shall exist which requires or could require the making of any change in to the Registration Statement, the Pricing Disclosure Package, or the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus Registration Statement, the Pricing Disclosure Package, or the Prospectus, or any individual Supplemental Offering Material (as used herein, “Supplemental Offering Material” means any written communication (within the meaning of the Act) prepared by or on behalf of the Company, or used or referred to by the Company, that constitutes an offer to sell or a solicitation of an offer to buy the International Offer Shares, including, without limitation, all information, materials and documents issued, given or presented in any of the investor presentations and/or roadshow presentations conducted by or on behalf of the Company in connection with the Global Offering that constitute such written communication) when considered together with the Registration Statement, the Pricing Disclosure Package, or the Prospectus, would not include an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances made when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the CompanyPricing Disclosure Package, or which may cause or result inthe Prospectus was delivered, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.misleading; or
Appears in 1 contract
Samples: International Underwriting Agreement (MINISO Group Holding LTD)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form in compliance with Rule 430B and approved by the Underwriters 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 City time) ), on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.
(xc) Xhe The Company will advise FBR the Representatives immediately, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the ProspectusProspectus or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Prospectus, including by filing any documents that would be incorporated therein by reference therein, and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file no or use any such amendment or supplement document to which FBR the Representatives or counsel for the Underwriters shall object in writing. The Company has given the Representatives notice of any filings made pursuant to the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the time of purchase and, if applicable, each additional time of purchase, and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall object in writing.
(d) The Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, will furnish to FBR andthe Representatives, and upon request, request to each of the other Underwriters Underwriters, for a period of five years from the date of this Agreement Agreement, (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR the Representatives may reasonably request regarding the Company, in each case as soon as such communicationcommunications, document documents or information becomes become available.
(f) The Company will advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will notify the Representatives and promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances, prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's ’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR the Representatives a signed copy of the Registration Statement, as initially filed with the Commission, Commission and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBRthe Representatives, not less than two Business Days before a filing with the Commission during the period referred to in paragraph subsection (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock stock, except for the sales to the Underwriter pursuant to this Agreement and except for issuances of Common Stock upon the exercise of outstanding options, for a period of 45 90 days after the date hereof (the "Lock-Up Period")hereof, without the prior written consent of FBRCredit Suisse. The foregoing sentence shall not apply to (i) the Shares to be sold hereunderhereunder and the Annaly Shares, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting grant of options restricted stock or other awards pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option ’s Equity Incentive Plan (not as exists on the date hereof or issuances pursuant to exceed 500,000 the exercise of employee stock options not exercisable within or other awards outstanding on the Lock-Up Period)date hereof, (iv) the payment in by any grantee of any shares of restricted stock or other awards pursuant to directors the Company’s Equity Incentive Plan as exists on the date hereof of any withholding or other taxes relating to such shares through or by means of the Company cancellation of a portion of their annual such shares, or other directors fees, (v) any shares of Common Stock sold by the filing Company pursuant to the Company’s dividend reinvestment and share purchase plan. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the 90-day restricted period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 90-day restricted period, the restrictions imposed in this subsection (k) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(l) The Company will use its best efforts to cause Annaly, each of the Company’s officers and directors and certain members of the senior management of Annaly to furnish to the Representatives, prior to the time of purchase, a letter or letters, substantially in the form of Exhibit B hereto, pursuant to which each such person shall agree, subject to certain exceptions set forth therein, not to sell, offer, contract to sell, pledge, grant any shelf registration statement option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock of the Company for a period of 90 days after thirty days from the date hereof, (vi) without the filing prior written consent of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment PlanCredit Suisse.
(lm) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(mn) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's ’s authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriters:
(a) The Company will to furnish such information as may be required requested and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to maintain such qualification for more than 90 days from the date hereof (except that, upon the written request of the Representatives and at the expense of the Underwriters, the Company shall maintain such qualification for an additional period, not to exceed 180 days), or to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representatives and to file such Prospectus (or a terms sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree Agreement, and will to furnish promptly (and with respect to the initial delivery of such Prospectusthe prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be materially identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.T of the Secuxxxxxs Act Regulations;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to before amending or supplementing the Registration Statement becomes effective or the Prospectus, or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act.Act Regulations, to furnish to the Representatives a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR andthe Underwriters, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement and only to the extent unavailable through EDGAR (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current xxxxent reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD, the NYSE or any securities exchange or the Nasdaq National Market and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, promptly to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company's expense, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters promptly such copies of the proposed amendment amendments or supplement supplements to the Prospectus as may be necessary to reflect any such change before filing any such amendment or supplement with the Commission Commission, and thereafter promptly furnish, to furnish at the Company's own expense, expense to the Underwriters and to dealers Underwriters, copies in such quantities and at such locations as FBR the Underwriters may from time to time reasonably request of an appropriate amendment request;
(i) to furnish promptly to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will to furnish to FBReach Representative, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (fh) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(k) The Company will to apply the net proceeds of the sale of the Shares in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, offeran earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, contract to sellat the option of the Company, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations) covering a period of 45 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing, quotation or inclusion of the Shares on the NYSE, the American Stock Exchange, Inc. or in the Nasdaq National Market (each an "Exchange"), and to file with such Exchange all documents and notices required by the Exchange of companies that have securities that are listed on or included in such Exchange;
(n) to refrain during a period of 90 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRFriedman, Billings, Ramsey & Co., Inc. and Stifel, Nicolaus & Company Incorporated, frox (x) offering, pledginx, xxxxxxx, xxxxracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, hereunder and (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option any options outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lo) The Company will to not, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
affiliates (mexcluding Friedman, Billings, Ramsey & Co., Inc.) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationnot to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination xx xxxmination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the SharesCompany, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(p) the Company will maintain, at the Company's expense, a registrar and transfer agent for the Common Shares;
(q) The the Company will use its best efforts to continue to qualify as a REIT under the Code and to cause Pegasus to continue to be registered as a broker-dealer with the Commission, the NASD, the SIPC and other applicable state and other regulatory authorities;
(r) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(s) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity subject to regulation as an investment company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(u) to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(v) not to invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange ActAct of 1978, as amendedamended (the "CEA"), or otherwise complies with the Commodity Exchange Act, as amendedCEA. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amendedCEA, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.; and
(w) The Company will maintain such controls to file timely and other procedures, including, without limitation, those required by Sections 302 and 906 accurate reports with the Commission in accordance with Rule 463 of the Sarbanes-Oxley Securities Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files Regulations or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedany successor provision.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (FBR Asset Investment Corp/Va)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Securities, the Company will furnish prepare a preliminary prospectus supplement containing such information concerning the Securities as may be required you and otherwise will cooperate in qualifying the Shares for offering Company deem appropriate, and sale under immediately following the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR may designate and to maintain such qualifications in effect so long as required for the distribution execution of the SharesTerms Agreement, provided that the Company shall not be required to qualify as will prepare a foreign corporation Prospectus Supplement that complies with the 1933 Act and that sets forth the number or to consent to principal amount of Securities covered thereby, the service names of process under the laws of any such jurisdiction (except service of process with respect to Underwriters participating in the offering and sale the number or principal amount of Securities which each Underwriter severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the Securities as you and the Company deem appropriate in connection with the offering of the Shares)Securities. The Company will promptly advise FBR transmit copies of the receipt by Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement, the Basic Prospectus and the Prospectus Supplement as you shall reasonably request. In addition, to the extent that any Underwriter (i) has provided to the Company Collateral Term Sheets or Series Term Sheets (each as defined below) that such Underwriter has provided to a prospective investor, the Company will file such Collateral Term Sheets or Series Term Sheets as an exhibit to a report on Form 8-K within two Business Days of any notification with respect its receipt thereof, or (ii) has provided to the suspension Company Structural Term Sheets or Computational Materials (each as defined below) that such Underwriter has provided to a prospective investor, the Company will file or cause to be filed with the Commission a report on Form 8-K containing such Structural Term Sheet and Computational Materials, as soon as reasonably practicable after the date of the qualification of the Shares for sale this Agreement, but in any jurisdiction or event, not later than the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare date on which the Final Prospectus in a form approved by the Underwriters and file such Prospectus is filed with the Commission pursuant to Rule 424(b424.
(b) under If at any time when the Final Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities Act not later than 10:00 A.M. (New York City time) on any event shall occur or before condition exist as a result of which it is necessary, in the second Business Day following the date opinion of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial 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 the parties may mutually agree) to counsel for 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request counsel for the purposes contemplated by the Securities ActCompany, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, 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 amend the Registration Statement or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Final Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so order that the Final Prospectus would will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingexisting at the time it is delivered to a purchaser, or if it is necessary shall be necessary, in the opinion of either such counsel, at any such time to amend any Registration Statement or amend or supplement the Final Prospectus in order to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion requirements of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law1933 Act, the Company will promptly prepare and furnish file with the Commission, subject to the Underwriters copies of the proposed amendment or supplement before filing any Section 3(d), such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, as may be necessary to the Underwriters and correct such untrue statement or omission or to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to make the Registration Statement or supplement to the Final Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the lawsuch requirements.
(gc) The Company will make generally available During the period when the Final Prospectus is required by the 1933 Act to its stockholders as soon as practicable, and be delivered in the manner contemplated by Rule 158 connection with sales of the Securities Act but in or during the entire period that any event not later than 15 months after Class of Securities is outstanding which were expected to be publicly offered securities for purposes of ERISA, the end of the Company's current fiscal quarterCompany will, an earnings statement (which need not subject to Section 3(d), file promptly all documents required to be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act").
(d) During the period between the date of the applicable Terms Agreement and during the Closing Date, the Company will inform you of its intention to file any amendment to any Registration Statement, any supplement to the Final Prospectus or any document that would as a result thereof be incorporated by reference in the Final Prospectus, will furnish you with copies of any such period amendment, supplement or other document and will not file all any such documents amendment, supplement or other document in a manner and within form to which you or your counsel shall reasonably object.
(e) During the time periods period when the Final Prospectus is required by the Exchange Act.
(k) The 1933 Act to be delivered in connection with the sales of the Securities, the Company will not sellnotify you immediately, offerand confirm the notice in writing, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) of the Shares effectiveness of any amendment to be sold hereunderany Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any shares of Common Stock issued supplement to the Final Prospectus or any document that would as a result thereof be incorporated by the Company upon the exercise of an option outstanding on the date hereof and referred to reference in the Final Prospectus, (iii) of the granting receipt of options pursuant any comments from the Commission with respect to any Registration Statement or the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period)Prospectus, (iv) of any request by the payment Commission for any amendment to any Registration Statement or any supplement to the Final Prospectus or for additional information relating thereto or to any document incorporated by reference in stock to directors of the Company of a portion of their annual or other directors fees, Final Prospectus and (v) of the filing issuance by the Commission of any shelf registration statement after thirty days from the date hereof, (vi) the filing stop order suspending any effectiveness of any registration statementRegistration Statement, including of the suspension of the qualification of the Securities for offering or sale in any amendment theretojurisdiction, relating or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the registration rights granted issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to certain stockholders in accordance with obtain the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by lifting thereof at the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Planearliest possible moment.
(lf) The Company will furnish to the Representative, without charge, two copies of each Registration Statement as originally filed and of all amendments thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and copies of all consents and certificates of experts as you may reasonably request, and has furnished or will furnish to you, for each other Underwriter, one copy of each Registration Statement as originally filed and of each amendment thereto.
(g) The Company will cause the Trust to make generally available to Securityholders and to the Representative as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the effective date of the Initial Registration Statement (or, if later, the effective date of the Additional Registration Statement), which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the Commission promulgated thereunder.
(h) The Company will use its best efforts efforts, in cooperation with the Underwriters, to cause qualify the Shares to be listed on Securities for offering and sale under the NYSE applicable securities laws of such states and other jurisdictions as you may designate and to maintain such listing and qualifications in effect for a period of not less than one year from the effective date of the Terms Agreement applicable to such Securities; provided, however, that the Company shall not be obligated to file with the NYSE all documents any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and notices reports as may be required by the NYSE laws of companies that each jurisdiction in which the Securities have securities that are listed on the NYSEbeen qualified as provided above.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance To the extent, if any, that the rating provided with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access respect to the assets Securities by the rating agency or agencies that initially rate the Securities is conditional upon the furnishing of documents or the taking of any other actions by the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of or Holdings, the Company are compared with existing assets at reasonable intervalsor Holdings, as applicable, shall furnish such documents and take any such other actions.
(nj) The Company For a period from the date of this Agreement until the retirement of the Securities, or until such time as the Underwriters shall cease to maintain a secondary market in the Securities, whichever first occurs, Holdings will engage and maintain, at its expense, a registrar and transfer agent for deliver to the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with Underwriters (i) the preparation and filing of the Registration Statement, 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)annual Servicer's Certificate, (ii) the issuance, sale and delivery of annual independent certified public accountants' reports furnished to the Shares by the CompanyTrustee, (iii) the qualification, if any, all documents required to be distributed to Securityholders of the Shares for offering Trust and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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) all documents filed with the Commission pursuant to the 1934 Act or any listing order of the Shares on Commission thereunder, in each case as provided to the NYSE Trustee or filed with the Commission, as soon as such statements and any registration thereof under reports are furnished to the Exchange Act, (v) the filingTrustee or filed or, if any, for review of the public offering of the Shares by the NASD, (vi) the costs and expenses an affiliate of the Company relating to presentations or meetings undertaken in connection with is not the marketing of the offering and sale of the Shares to prospective investors and the Underwriters' sales forcesServicer, 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 (vii) the performance of the Company's other obligations hereunderas soon thereafter as practicable.
(pk) The Between the date of the applicable Terms Agreement and the Closing Date or such other date as is set forth in such Terms Agreement, the Company will not (i) takenot, without your prior written consent, directly or indirectly, prior sell, offer to termination of sell, grant any option for the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Companysale of, or which may cause or result in, or which might in the future reasonably be expected to cause or result inotherwise dispose of, the stabilization Securities set forth in such Terms Agreement or manipulation of the price of any security of the Companysimilar securities, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Companyset forth in such Terms Agreement.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Partners First Credit Card Master Trust)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriters:
(a) The Company will to furnish such information as may be required requested and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to maintain such qualification for more than 90 days from the date hereof (except that, upon the written request of the Representatives and at the expense of the Underwriters, the Company shall maintain such qualification for an additional period, not to exceed 180 days), or to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representatives and to file such Prospectus (or a terms sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree Agreement, and will to furnish promptly (and with respect to the initial delivery of such Prospectusthe prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be materially identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act Regulations;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective, when any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations, or when a supplement to the Prospectus or any amendment to the Prospectus has been filed;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to before amending or supplementing the Registration Statement becomes effective or the Prospectus, or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act.Act Regulations, to furnish to the Representatives a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR andthe Underwriters, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement and only to the extent unavailable through EXXXX (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD, the NYSE or any securities exchange or the Nasdaq National Market and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its subsidiaries;
(fh) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, promptly to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company’s expense, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters promptly such copies of the proposed amendment amendments or supplement supplements to the Prospectus as may be necessary to reflect any such change before filing any such amendment or supplement with the Commission Commission, and thereafter promptly furnish, to furnish at the Company's ’s own expense, expense to the Underwriters and to dealers Underwriters, copies in such quantities and at such locations as FBR the Underwriters may from time to time reasonably request of an appropriate amendment request;
(i) to furnish promptly to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will to furnish to FBReach Representative, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (fh) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(k) The Company will to apply the net proceeds of the sale of the Shares in accordance with the statements under the caption “Use of Proceeds” in the Prospectus;
(l) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, offeran earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, contract to sellat the option of the Company, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations) covering a period of 45 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing, quotation or inclusion of the Shares on the NYSE, the American Stock Exchange, Inc. or in the Nasdaq National Market (each an “Exchange”), and to file with such Exchange all documents and notices required by the Exchange of companies that have securities that are listed on or included in such Exchange;
(n) to refrain during a period of 90 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRFriedman, Billings, Rxxxxx & Co., Inc. and J.X. Xxxxxx Securities Inc., from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, hereunder and (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option any options outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lo) The Company will to not, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
affiliates (mexcluding Friedman, Billings, Rxxxxx & Co., Inc.) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorizationnot to, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the SharesCompany, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(p) the Company will maintain, at the Company’s expense, a registrar and transfer agent for the Common Shares;
(q) The the Company will use its best efforts to continue to qualify as a REIT under the Code and to cause Friedman, Billings, Rxxxxx & Co., Inc. and Pegasus to continue to be registered as a broker-dealer with the Commission, the NASD, the SIPC and other applicable state and other regulatory authorities;
(r) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(s) the Company and its subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an “investment company” or an entity subject to regulation as an investment company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives’ reasonable opinion the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(u) to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(v) not to invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange ActAct of 1978, as amendedamended (the “CEA”), or otherwise complies with the Commodity Exchange Act, as amendedCEA. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amendedCEA, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.;
(w) The Company will maintain such controls to file timely and other procedures, including, without limitation, those required by Sections 302 and 906 accurate reports with the Commission in accordance with Rule 463 of the Sarbanes-Oxley Securities Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files Regulations or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.any successor provision;
(x) The Company will comply with all effective applicable provisions to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and to continue such qualifications in effect so long as required for distribution of the Sarbanes-Oxley ActShares; and
(y) to not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares, other than with respect to the activities of Friedman, Billings, Rxxxxx & Co., Inc. in its capacity as an Underwriter of the Shares.
Appears in 1 contract
Samples: Underwriting Agreement (Friedman Billings Ramsey Group Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters 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 City time) Regulations on or before the second Business Day business day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties hereto may mutually agree) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing when, prior to the termination of the underwriting syndicate contemplated by this Agreement, any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations;
(e) to advise the Representatives, prior to the termination of the underwriting syndicate contemplated by this Agreement, immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives, prior to the termination of the underwriting syndicate contemplated by this Agreement, promptly of any proposal to amend or supplement the Registration Statement or Prospectus and, prior to the Prospectus including termination of the underwriting syndicate contemplated by filing any documents that would be incorporated therein by reference and this Agreement, to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR prior to the termination of the underwriting syndicate contemplated by this Agreement, to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act.Act or requested by the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR the Representatives and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Representatives may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.;
(fh) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and furnish, at the Company's expense, to the Underwriters promptly such amendments or if it is necessary at any time supplements to amend or supplement the Prospectus as may be necessary to comply reflect any such change;
(i) to furnish promptly to the Representatives such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith) as the Underwriters may reasonably request;
(j) to use its best efforts to furnish to the Underwriters, not less than two business days before filing with the Commission, during any law. If within the period of time during in which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist whichRegulations, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making a copy of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required document proposed to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement filed with the Commission and thereafter promptly furnishpursuant to Section 13, at 14 or 15(d) of the Company's own expense, Exchange Act;
(k) to apply the Underwriters and to dealers copies net proceeds of the sale of the Shares substantially in such quantities and at such locations as FBR may from time to time reasonably request accordance with its statements under the caption "Use of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, Proceeds" in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Prospectus;
(gl) The Company will to make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning quarter first occurring after the first anniversary of the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy Regulation, an earnings statement complying with the provisions of Section 11(a) of the Securities Act and (in form, at the option of the Company, complying with the provisions of Rule 158 thereunder and will advise of the Underwriters in writing when such statement has been made available.Securities Act Regulations) covering a period of 12 months beginning on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act Regulation;
(hm) The Company will furnish to FBR a signed copy of use its best efforts to effect and maintain the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale listing of the Shares in on the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish New York Stock Exchange and to FBR, not less than two Business Days before a filing file with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the New York Stock Exchange Act all documents and during such period will file all such documents in a manner and within the time periods notices required by the New York Stock Exchange Act.of companies that have securities that are listed on the New York Stock Exchange;
(kn) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to except in the Prospectus, ordinary course of business in connection with (iiiw) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period400,000 options), (ivx) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (vy) the filing of any shelf registration statement after thirty days from statement, including any amendment thereto, pursuant to the date hereofregistration rights granted to certain stockholders in accordance with the Merger Agreement, and (viz) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan DRSPP to be instituted by the Company Company, to refrain during a period of 60 days from the date of this Agreement, without the prior written consent of the Representatives, from (i) offering, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (viiii) shares entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any Common Shares issued by the Company upon the exercise of an option outstanding on the date hereof or upon the exercise of any option granted in the ordinary course of business as provided herein or (C) any Common Shares issued by the Company pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.DRSPP;
(lo) The Company will to maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(p) to use its best efforts to cause continue to meet the requirements to qualify as a real estate investment trust under the Code;
(q) to comply with all of the provisions of any undertakings in the Registration Statement;
(r) to conduct its affairs in such a manner so as to ensure that the Company will not be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act;
(s) if at any time during the 30-day period after the execution of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be listed materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, in compliance with the Securities Act, the Securities Act Regulations and other applicable laws and reasonably satisfactory to the Representatives, responding to or commenting on the NYSE and such rumor, publication or event; and
(t) to maintain such listing and to file with the NYSE all documents and notices required by the NYSE a system of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.
(n) The Company will engage intervals and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection appropriate action is taken with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay respect to any Person any compensation for soliciting any order to purchase any other securities of the Companydifferences.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (America First Mortgage Investments Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the Securities Act not later than 10:00 A.M. (New York City time) time period prescribed by law, on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act.Act or requested by the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and furnish, at the Company's expense, to the Underwriters promptly such amendments or if it is necessary at any time supplements to amend or supplement the Prospectus as may be necessary to comply reflect any such change;
(i) to furnish promptly to the Representatives such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith) as the Underwriters may reasonably request;
(j) to furnish to the Underwriters, not less than two business days before filing with the Commission, subsequent to the effective date of the Prospectus and during any law. If within the period of time during in which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist whichRegulations, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making a copy of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required document proposed to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement filed with the Commission and thereafter promptly furnishpursuant to Section 13, at 14, or 15(d) of the Company's own expense, Exchange Act;
(k) to apply the Underwriters and to dealers copies net proceeds of the sale of the Shares substantially in such quantities and at such locations as FBR may from time to time reasonably request accordance with its statements under the caption "Use of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, Proceeds" in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.Prospectus;
(gl) The Company will to make generally available to its stockholders security holders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning quarter first occurring after the first anniversary of the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy Regulation, an earnings statement complying with the provisions of Section 11(a) of the Securities Act and (in form, at the option of the Company, complying with the provisions of Rule 158 thereunder and will advise of the Underwriters in writing when such statement has been made available.Securities Act Regulations) covering a period of 12 months beginning on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act Regulation;
(hm) The Company will furnish to FBR a signed copy of use its best efforts to effect and maintain the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale listing of the Shares in on the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish New York Stock Exchange and to FBR, not less than two Business Days before a filing file with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the New York Stock Exchange Act all documents and during such period will file all such documents in a manner and within the time periods notices required by the New York Stock Exchange Act.of companies that have securities that are listed on the New York Stock Exchange;
(kn) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to except in the Prospectus, ordinary course of business in connection with (iiiw) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period400,000 options), (ivx) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (vy) the filing of any shelf registration statement after thirty days from statement, including any amendment thereto, pursuant to the date hereofregistration rights granted to certain shareholders in accordance with the Merger Agreement, and (viz) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company ("DRSPP"), to refrain during a period of 90 days from the date of this Agreement, without the prior written consent of the Representatives, from (i) offering, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (viiii) shares entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any Common Shares issued by the Company upon the exercise of an option outstanding on the date hereof or upon the exercise of any option granted in the ordinary course of business as provided herein or (C) any Common Shares issued by the Company pursuant to any DRSPP;
(o) the Company will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(lp) The the Company will use its best efforts to cause continue to meet the requirements to qualify as a real estate investment trust under the Code;
(q) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(r) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act;
(s) if at any time during the 30-day period after the execution of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be listed materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, in compliance with the Securities Act, the Securities Act Regulations and other applicable laws and reasonably satisfactory to the Representatives, responding to or commenting on the NYSE and such rumor, publication or event; and
(t) to maintain such listing and to file with the NYSE all documents and notices required by the NYSE a system of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.
(n) The Company will engage intervals and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection appropriate action is taken with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay respect to any Person any compensation for soliciting any order to purchase any other securities of the Companydifferences.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (America First Mortgage Investments Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR the Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The that if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters 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 City timein a manner and within the time period required by Rule 424(b) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representative promptly and (if requested by the Representative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(g) to advise the Representative immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, (iv) the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The , (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company will becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise FBR the Representative promptly of any proposal to amend or supplement the Registration Statement or Statement, the Preliminary Prospectus, the Prospectus including by filing or any documents that would be incorporated therein by reference Issuer Free Writing Prospectus and to file no such amendment or supplement to which FBR the Representative shall reasonably object to in writing.;
(dh) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to furnish to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five two years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of shares of Common Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents FINRA or reports filed with any national securities exchange on which (provided that with respect to clause (i) and (ii) the filing of same with XXXXX or any class of securities successor system of the Company is listedCommission shall be deemed to satisfy the obligation to furnish any material required to be furnished hereunder), and (iviii) such other information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and the Subsidiaries;
(fi) The Company will to advise the Underwriters promptly of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company or in the reasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law. If within the time law and, during which a Prospectus relating such time, to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, furnish at the Company's ’s own expense, expense to the Underwriters and to dealers dealers, copies in such quantities and at such locations as FBR the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law.;
(gj) The Company will make generally available to its stockholders as soon as practicablefile promptly with the Commission any amendment or supplement to the Registration Statement, and any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the manner contemplated judgment of the Company or the Representative, be required by Rule 158 of the Securities Act but in or requested by the Commission;
(k) prior to filing with the Commission any event not later than 15 months after amendment or supplement to the end Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representative and counsel for the Underwriters and obtain the consent of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after Representative to the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.filing;
(hl) The Company will to furnish promptly to FBR the Representative a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representative may reasonably request.;
(im) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will to furnish to FBRthe Representative, not less than two Business Days as soon as practicable before a filing with the Commission Commission, during the period referred to in paragraph (fi) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such the period will of two years hereafter to file all such documents in a the manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(kn) The Company will to apply the net proceeds of the sale of the Shares in accordance with its statements under the caption “Use of Proceeds” in the Prospectus and the Disclosure Package;
(o) to make generally available to its security holders and to deliver to the Representative as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, offerat the option of the Company, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations,) covering a period of 45 days 12 months beginning after the effective date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.Registration Statement;
(lp) The Company will to use its reasonable best efforts to cause maintain the listing of the Shares to be listed on the NYSE and to maintain such listing The Nasdaq Global Select Market and to file with the NYSE The Nasdaq Global Select Market all documents and notices required by the NYSE The Nasdaq Global Select Market of companies that have securities that are listed on the NYSE.traded and quotations for which are reported by The Nasdaq Global Select Market;
(mq) to take all necessary actions to ensure that, upon and at all times after The Company Nasdaq Global Select Market shall have approved the Shares for listing, it will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance be in compliance with all applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules that (i) transactions are executed then in accordance effect and, with management's authorizationrespect to other applicable corporate governance requirements set forth in the Nasdaq Marketplace Rules not currently in effect, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only taking such steps to ensure that it will be in accordance compliance with management's authorization such requirements upon and all times after the effectiveness thereof;
(ivr) to take all necessary actions to ensure that, upon and at all times after the recorded accounts effectiveness of the assets Registration Statement, it will be in compliance with all applicable provisions of the Xxxxxxxx-Xxxxx Act and all rules and regulations promulgated thereunder or implementing the provisions thereof that are then in effect and, with respect to other applicable provisions of the Xxxxxxxx-Xxxxx Act not currently in effect, the Company are compared is taking such steps to ensure that it will be in compliance with existing assets such requirements upon and at reasonable intervals.all times after the effectiveness thereof;
(ns) The Company will engage and to maintain, at its expense, a registrar and transfer agent for the Shares.;
(ot) The Company will pay all expensesto refrain, fees and taxes from the date hereof until 180 days after the date of the Prospectus (other than any transfer taxes and fees and disbursements the “Lock-Up Period”), without the prior written consent of counsel for the UnderwritersRepresentative, except as set forth under Section 5 hereof from, directly or in clause (iii) or (iv) below) in connection with indirectly, (i) the preparation and filing offering, pledging, selling, contracting, agreeing to offer or sell, soliciting offers to purchase, granting any call option or purchasing any put option with respect to, pledging, borrowing or otherwise disposing of any Common Stock, any other equity security of the Registration StatementCompany or any of its Subsidiaries and any security convertible into, or exercisable or exchangeable for, any Common Stock or other such equity security (whether the ProspectusCompany now owns or hereafter acquires such Common Stock or other security) (“Relevant Securities”), 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) establishing or increasing any “put equivalent position” or liquidating or decreasing any “call equivalent position” with respect to any Relevant Security (in each case within the issuancemeaning of Section 16 of the Exchange Act and the Exchange Act Regulations), sale and or otherwise entering into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequences of ownership of any Relevant Security, whether or not such transaction is to be settled by delivery of the Shares by the CompanyRelevant Securities, other securities, cash or other consideration; provided, however, that restrictions described in clauses (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to the Underwritersi) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (ivii) any listing of the Shares on the NYSE and any registration thereof under the Exchange Act, do not apply to: (vA) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares to prospective investors be sold hereunder, or (B) the issuance of shares of Common Stock upon the exercise of stock options outstanding on the date hereof and referred to in 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 consultantsProspectus;
(u) not to, and (vii) the performance of the Company's other obligations hereunder.
(p) The Company will to use its best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares or (iii) pay or agree to pay to any Person person (other than the Underwriters) any compensation for soliciting any order to purchase any other securities of the Company.;
(qv) The Company will not invest to cause each of the persons listed on Schedule III hereto to furnish to the Representative, prior to the Initial Sale Time, a letter or letters, substantially in futures contracts, options on futures contracts or options on commodities unless the form of Exhibit A hereto (the “Lock-Up Letter Agreement”);
(w) that the Company and its Subsidiaries shall obtain or maintain, as appropriate, Directors and Officers liability insurance in an amount deemed advisable by the Company in its reasonable discretion;
(x) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is exempt likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the registration requirements of Representative advising the Commodity Exchange ActCompany to the effect set forth above, as amendedto forthwith prepare, or otherwise complies consult with the Commodity Exchange ActRepresentative concerning the substance of, as amended. In additionand disseminate a press release or other public statement, the Company will not engage in any activities which might be subject reasonably satisfactory to the Commodity Exchange ActRepresentative, as amendedresponding to or commenting on such rumor, unless such activities are exempt from that act publication or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.event;
(ry) The that the Company will comply with all of the provisions of any undertakings in the Registration Statement.;
(sz) The Company has been organized and operated in conformity with the requirements for qualification and taxation of that the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures will comply with all applicable securities and conduct annual compliance reviews designed to determine compliance other applicable laws, rules and regulations, including without limitation, the rules and regulations of FINRA, in each jurisdiction in which the Directed Shares are offered in connection with the REIT provisions of the Code Directed Shares Program and (ii) to otherwise assist will pay all reasonable fees and disbursements of counsel incurred by the Company Underwriters in monitoring appropriate accounting systems and procedures designed to determine compliance connection with the REIT provisions of Directed Share Program and any stamp duties, similar taxes or duties or other taxes, if any, incurred by the Code.Underwriters in connection with the Directed Share Program;
(vaa) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary use its reasonable best efforts to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required obtain shareholder approval to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to amend the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions’s Restated Articles of Incorporation, as appropriate amended, to allow timely decisions regarding required disclosure and increase the number of shares of authorized Common Stock to ensure that material information relating to at least 150 million shares (the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared“Charter Amendment”).
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under within the Securities Act not later than 10:00 A.M. (New York City time) time period prescribed by law, on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAREXXXX, except to the extent permitted by Regulation S-T.T;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR to file promptly and, if requested by FBR, will confirm such advice in writing when with the Commission any post-effective amendment to the Registration Statement becomes effective under or the Prospectus or any supplement to the Prospectus that may, in the judgment of the 13 Company or the Representatives, be required by the Securities Act.Act or requested by the Commission;
(eg) The Company willprior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 of the Securities Act Regulations, promptly upon request, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing;
(h) to furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD or any securities exchange and (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 publicly available information as FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fi) The Company will to advise the Underwriters promptly during any period of the happening of any event known to the Company within the time during in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations (i) of any material change in the Company's assets, operations, business or condition (financial or otherwise) or (ii) of the happening of any event which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time and, during such time, to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in promptly such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement amendments or supplement supplements to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, may be misleading or so that the Prospectus will comply with the law.necessary to reflect any such change;
(gj) The Company will make generally available to its stockholders as soon as practicable, and in furnish promptly to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents incorporated by reference thereinfiled therewith) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(ik) The Company will to furnish to the Underwriters, not less than two business days before filing with the Commission, subsequent to the effective date of the Prospectus and during any period of time in which a prospectus relating to the Shares is required to be delivered under the Securities Act Regulations, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act;
(l) to apply the net proceeds from of the sale of the Shares substantially in the manner set forth accordance with its statements under the caption "Use of Proceeds" in the Prospectus.;
(jm) The Company will furnish to FBRmake generally available to its security holders as soon as practicable, but in any event not less later than two Business Days before a filing the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, an earnings statement complying with the Commission during the period referred to in paragraph (f) above, a copy provisions of any document proposed to be filed pursuant to Section 13, 14 or 15(d11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning on the effective date of the Registration Statement;
(n) to use its best efforts to effect and maintain the listing of the Shares on the New York Stock Exchange Act and during such period will to file with the New York Stock Exchange all such documents in a manner and within the time periods notices required by the New York Stock Exchange Act.of companies that have securities that are listed on the New York Stock Exchange;
(ko) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to except in the Prospectus, ordinary course of business in connection with (iiix) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), ________ options) and (ivy) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing to refrain during a period of any shelf registration statement after thirty 180 days from the date hereofof the Prospectus, without the prior written consent of the Representatives, from (vii) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan Shares to be instituted sold hereunder, or (B) any Common Shares issued by the Company upon the exercise of an option outstanding on the date hereof or upon the exercise of any option granted in the ordinary course of business as provided herein;
(viip) shares the Company will maintain a transfer agent and, if necessary under the jurisdiction of Common Stock issued pursuant to formation of the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.a registrar (which may be the same entity as the transfer agent) for its Common Shares;
(lq) The the Company will use its best efforts to cause meet the requirements to qualify as a real estate investment trust under the Code;
(r) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(s) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity "controlled" by an investment company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be listed materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on the NYSE and such rumor, publication or event; and
(u) to maintain such listing and to file with the NYSE all documents and notices required by the NYSE a system of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, general or specific authorizations; (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements in conformity with generally accepted accounting principles and to maintain accountability for the assets of the Company, asset accountability; (iii) access to the assets of the Company is permitted only in accordance with management's authorization general or specific authorization; and (iv) the recorded accounts of the accountability for assets of the Company are is compared with the existing assets at reasonable intervals.
(n) The Company will engage intervals and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection appropriate action is taken with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay respect to any Person any compensation for soliciting any order to purchase any other securities of the Companydifferences.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (America First Mortgage Investments Inc)
Certain Covenants of the Company. The Company and the Partnership hereby covenants and agrees with each of the Underwriters thatagree:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions (both domestic and foreign) as FBR the Representatives may designate and to maintain such qualifications in effect so long as required the Representatives may request for the distribution of the Shares, ; provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will ; and to promptly advise FBR the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T;
(xc) Xhe the Company will advise FBR immediatelythe Representatives, 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 or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the issuance by the Commission entry of any a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall object to in writing.;
(d) The the Company will advise FBR the Representatives promptly and, if requested by FBRthe Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.;
(e) The Company will, promptly upon request, furnish to FBR and, upon requestif necessary, to each of file a registration statement pursuant to Rule 462(b) under the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Act;
(f) The Company will to advise the Underwriters Representatives promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR the Representatives or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Underwriters Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's ’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law.;
(g) The Company will to make generally available to its stockholders as soon as practicablesecurity holders, and in to deliver to the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarterRepresentatives, an earnings statement of the Company (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall will satisfy the provisions of Section 11(a) of the Securities Act and Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158 thereunder and will advise 158(c) under the Underwriters in writing when Act) as soon as is reasonably practicable after the termination of such statement has been made available.twelve-month period but not later than May 1, 2011;
(h) The Company will to furnish to FBR its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i) to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Underwriters may reasonably request.;
(j) to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) The copies of any reports, proxy statements, or other communications which the Company will shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (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 the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries provided that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through XXXXX;
(k) to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership 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(c) hereof;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "“Use of Proceeds" ” in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.;
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters each Underwriter and to dealers (including costs of mailing and shipment), (ii) the issuanceregistration, issue, sale and delivery of the Shares by including any stock or transfer taxes and stamp or similar duties payable upon the Companysale, issuance or delivery of the Shares to the Underwriters, (iii) the qualificationproducing, if anyword 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 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 to 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, (ivv) any the listing of the Shares on the NYSE and any registration thereof under the Exchange ActNew York Stock Exchange, (vvi) the filing, if any, any filing for review of the public offering of the Shares by the NASDFINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vivii) 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' ’ respective 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 (vii) the cost of any aircraft chartered in connection with the road show, and the performance of the Company's ’s and the Partnership’s other obligations hereunder.;
(pn) The Company will not to (i1) takesell, 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, prior any Common Shares or securities convertible into or exchangeable or exercisable for Common Shares or warrants or other rights to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by otherwise transfer the provisions hereof) any compensation for soliciting purchases economic consequences of the Shares, ownership of Common Shares or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.Company or the Partnership that are substantially similar to Common Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Common Shares or securities convertible into or exercisable or exchangeable for Common Shares or other rights to purchase Common Shares or any other securities of the Company or the Partnership that are substantially similar to Common Shares, respectively, for a period of 60 days after the date hereof (the “Lock-Up Period”), without the prior written consent of the Representatives, except for (1) the registration of the Shares and the sales to the Underwriters pursuant to this Agreement, (2) the issuance of units of limited partnership interest by the Partnership in exchange for properties, (3) the issuance of Common Shares in redemption of units of limited partnership interest, and (4) the issuance of Common Shares or options to purchase Common Shares or Common Shares upon the exercise of options outstanding as of that date of Pre-Pricing Prospectus pursuant to any dividend reinvestment plan, equity incentive, stock option, stock bonus, stock purchase or other stock plan or arrangement described in the Prospectus, but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during the Lock-Up Period without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives); 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(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;
(o) to use its best efforts to cause the Common Shares to be listed on the New York Stock Exchange;
(p) the Company shall use its best efforts to obtain for the benefit of the Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of each of the individuals listed on Schedule C;
(q) The Company will not invest in futures contractsto maintain a transfer agent and, options on futures contracts or options on commodities unless if necessary under the Company is exempt from the registration requirements jurisdiction of incorporation of the Commodity Exchange ActCompany, as amended, or otherwise complies with a registrar for the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.Common Shares;
(r) The Company will to comply with all of Rule 433(d) under the provisions of any undertakings in Act (without reliance on Rule 164(b) under the Registration Statement.Act) and with Rule 433(g) under the Act;
(s) The 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 has been organized and operated in conformity with or any Subsidiary, the requirements for qualification and taxation financial condition, results of operations, business, properties, assets, or liabilities of the Company as a REIT under or any Subsidiary, or the Codeoffering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business; and
(t) to use the Company's proposed methods of operation will enable the Company ’s best efforts to continue to meet the requirements for qualification and taxation as a REIT under for the Code taxable year ending December 31, 2010 and for subsequent its future taxable years.
(t) The Company will not be or become, at any time prior to unless the expiration Board of three years after Trustees determines that it is no longer in the date best interests of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedso qualified.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters that:
(a) The Company will furnish such information as may be required and otherwise will cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) as FBR UBS Warburg may designate and to maintain such qualifications in effect so long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation 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). The Company will promptly advise FBR UBS Warburg of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) ), on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial 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 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 the Third Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.
(xc) Xhe The Company will advise FBR UBS Warburg immediately, 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 Statements or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of any one of the Registration Statement Statements or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR UBS Warburg promptly of any proposal to amend or supplement the Registration Statement Statements or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR UBS Warburg shall object to in writing.
(d) The Company will advise FBR UBS Warburg promptly and, if requested by FBRUBS Warburg, will confirm such advice in writing when any post-effective amendment to any one of the Registration Statement Statements becomes effective under the Securities Act.
(e) The Company will, promptly upon request, will furnish to FBR UBS Warburg and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR UBS Warburg may reasonably request regarding the Company, in each case as soon as such communicationcommunications, document documents or information becomes become available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR UBS Warburg or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR UBS Warburg may from time to time reasonably request of an appropriate amendment to the Registration Statement Statements or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR UBS Warburg a signed copy of the Registration StatementStatements, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR UBS Warburg may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBRUBS Warburg, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock stock, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement and except for issuances of Common Stock upon the exercise of outstanding options, for a period of 45 90 days after the date hereof (the "Lock-Up Period")hereof, without the prior written consent of FBRUBS Warburg. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the DRSPP, (iv) the grant of awards pursuant to the Company's existing Discount Waiver, Direct Long-Term Stock Purchase and Dividend Reinvestment PlanIncentive Plan or issuances pursuant to the exercise of employee stock options or other awards or (v) the filing of any registration statement with the Commission following the expiration of a period of 31 days after the date hereof.
(l) The Company will use its best efforts to cause each officer and director of the Company to furnish to UBS Warburg, prior to the time of purchase, a letter or letters, substantially in the form of Exhibit C hereto, pursuant to which each such person shall agree not to sell, offer, contract to sell, pledge, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock of the Company for a period of 90 days after the date hereof, without the prior written consent of UBS Warburg.
(m) The Company will use its best efforts to cause the Shares to be listed on the NYSE New York Stock Exchange and to maintain such listing and to file with the NYSE New York Stock Exchange all documents and notices required by the NYSE New York Stock Exchange of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervalsNew York Stock Exchange.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration StatementStatements, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualificationword processing and/or printing of this Agreement, if anyany Agreement among the Underwriters, any dealer agreements, any Statements of Information, the Custody Agreement and the Powers of Attorney, as applicable, and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (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 to the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (ivv) any listing of the Shares on the NYSE New York Stock Exchange and any registration thereof under the Exchange Act, (vvi) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration StatementStatements.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst Deloitte & Young Touche LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and the Company's exempt status under the Investment Company Act and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act Code and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to exempt status under the Investment Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (Annaly Mortgage Management Inc)
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriter:
(a) The Company will to furnish such information as may be required and otherwise will to cooperate in qualifying the Shares Notes for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Underwriters may designate and to maintain such qualifications in effect so as long as required for the distribution of the SharesNotes, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state or subject itself to taxation as doing business in any jurisdiction (except service of process with respect to the offering and sale of the SharesNotes). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The Company will to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day business day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree and will to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be electronically transmitted to copies thereof filed with the Commission for filing via EDGARpursuant to EDGAX, except xxcept to the extent permitted by Regulation S-T.T;
(xc) Xhe Company will to advise FBR immediatelythe Underwriters promptly and (if requested by the Underwriters) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;
(d) to advise the Underwriters promptly, 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 or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares Notes is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist Regulations which, in the reasonable opinion judgment of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Joint Sponsors, the Joint Representatives, the Joint Global Coordinators, the Joint Bookrunners and the International Underwriters that:
(a) The Company will furnish such information as may be required file the Final International Prospectus with the SEC within the time periods specified by Rule 424(b) and otherwise will cooperate in qualifying the Shares for offering and sale Rule 430A, 430B or 430C under the securities or blue sky laws of such jurisdictions (both domestic Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; and foreign) as FBR may designate and to maintain such qualifications in effect so long as required for the distribution Company will furnish copies of the Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent Final International Prospectus and each Issuer Free Writing Prospectus (to the service of process under the laws of any such jurisdiction (except service of process with respect extent not previously delivered) to the offering and sale Underwriters in New York City prior to 5:00 P.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Shares). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeJoint Representatives may reasonably request.
(b) The Company will prepare the Prospectus in a form approved by the Underwriters 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 City time) on or before the second Business Day following the date of this Agreement or on such other day as the parties may mutually agree and will furnish promptly (and with respect to the initial delivery of such Prospectusdeliver, 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 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Actwithout charge, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(x) Xhe Company will advise FBR immediately, confirming such advice in writing, of (i) the receipt of any comments from the Commission relating to any filing each of the Company under the Securities Act or the Exchange ActJoint Representatives, (ii) any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, (iii) the issuance by the Commission of any stop order suspending the effectiveness two copies of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (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. The Company will advise FBR promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference originally filed and to file no such each amendment or supplement to which FBR shall object to in writing.
(d) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Securities Act.
(e) The Company will, promptly upon request, furnish to FBR and, upon request, to each of the other Underwriters for a period of five years from the date of this Agreement (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, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the 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 FBR may reasonably request regarding the Companythereto, in each case as soon as such communication, document or information becomes available.
(f) The Company will advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act which would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company's own expense, to the Underwriters and to dealers copies in such quantities and at such locations as FBR may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will furnish to FBR, not less than two Business Days before a filing with the Commission during the period referred to in paragraph (f) above, a copy of any document proposed to be consents filed pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period will file all such documents in a manner and within the time periods required by the Exchange Act.
(k) The Company will not sell, offer, contract to sell, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares of capital stock for a period of 45 days after the date hereof (the "Lock-Up Period"), without the prior written consent of FBR. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.
(l) The Company will use its best efforts to cause the Shares to be listed on the NYSE and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, 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 issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) any compensation for soliciting purchases of the Shares, or (iii) pay or agree to pay to any Person any compensation for soliciting any order to purchase any other securities of the Company.
(q) The Company will not invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange Act, as amended, or otherwise complies with the Commodity Exchange Act, as amended. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amended, unless such activities are exempt from that act or otherwise comply with that act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code therewith; and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions each Underwriter (A) a conformed copy of the Code.
Registration Statement as originally filed and each amendment thereto (vwithout exhibits) The Company will comply with and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Final International Prospectus (including all requirements imposed upon it by amendments and supplements thereto and each Issuer Free Writing Prospectus) as the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings inJoint Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the after the Listing Date as in the opinion of counsel for the Underwriters a prospectus relating to the Offer Shares as contemplated by the provisions hereof and the Prospectus.
(w) The Company will maintain such controls and other procedures, including, without limitation, those is required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information law to be delivered (or required to be disclosed by the Company in the reports that it files or submits delivered but for Rule 172 under the Exchange Act is recorded, processed, summarized and reported within the time periods specified Securities Act) in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(x) The Company will comply connection with all effective applicable provisions sales of the Sarbanes-Oxley ActOffer Shares by any Underwriter or dealer.
Appears in 1 contract
Certain Covenants of the Company. The Company hereby covenants and agrees with each of the Underwriters thatUnderwriters:
(a) The Company will to furnish such information as may be required requested and otherwise will to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such jurisdictions (both domestic and foreign) states as FBR the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Shares, provided that the Company shall not be required to maintain such qualification for more than 90 days from the date hereof (except that, upon the written request of the Representatives and at the expense of the Underwriters, the Company shall maintain such qualification for an additional period, not to exceed 180 days), or to qualify as a foreign corporation 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). The Company will promptly advise FBR of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.;
(b) The if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters Representatives and to file such Prospectus (or a terms sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 A.M. a.m. (New York City time) ), on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agree Agreement, and will to furnish promptly (and with respect to the initial delivery of such Prospectusthe prospectus, not later than 10:00 A.M. a.m. (New York City time) on or before the second Business Day day following the date execution and delivery of this Agreement or on such other day as the parties may mutually agreeAgreement) 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 the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities ActAct Regulations, which the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be materially identical to the version created to be transmitted to the Commission for filing via EDGARXXXXX, except to the extent permitted by Regulation S-T.T of the Securities Act Regulations;
(xd) Xhe Company will to advise FBR the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment to the Registration Statement becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, 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 from, or the Exchange Act, (ii) any request by by, the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or (iiiii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, (iv) or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) or of the initiation, initiation or threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental government agency or authority should issue any such order, the Company will to make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will ; to advise FBR the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which FBR the Representatives shall reasonably object to in writing.;
(df) The Company will advise FBR promptly and, if requested by FBR, will confirm such advice in writing when any post-effective amendment to before amending or supplementing the Registration Statement becomes effective or the Prospectus, or, during any period of time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act.Act Regulations, to furnish to the Representatives a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(eg) The Company will, promptly upon request, to furnish to FBR andthe Underwriters, upon request, to each of the other Underwriters for a period of five three years from the date of this Agreement and only to the extent unavailable through XXXXX (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 disseminateas soon as available, (ii) copies of all annual, quarterly and current reports or other communications supplied to holders of Common Shares, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, the NASD, the American Stock Exchange or any securities exchange or the Nasdaq National Market and (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 FBR the Underwriters may reasonably request regarding the Company, in each case as soon as such communication, document or information becomes available.Company and its Subsidiaries;
(fh) The Company will to advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus prospectus relating to the Shares is required to be delivered under the Securities Act which Regulations which, in the judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, used so that the Prospectus would not include an any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary and, during such time, promptly to prepare and furnish, at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company's expense, FBR or their respective counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company will promptly prepare and furnish to the Underwriters promptly such copies of the proposed amendment amendments or supplement supplements to the Prospectus as may be necessary to reflect any such change before filing any such amendment or supplement with the Commission Commission, and thereafter promptly furnish, to furnish at the Company's own expense, expense to the Underwriters and to dealers Underwriters, copies in such quantities and at such locations as FBR the Underwriters may from time to time reasonably request of an appropriate amendment request;
(i) to furnish promptly to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Prospectus will comply with the law.
(g) The Company will make generally available to its stockholders as soon as practicable, and in the manner contemplated by Rule 158 of the Securities Act but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Securities Act that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and will advise the Underwriters in writing when such statement has been made available.
(h) The Company will furnish to FBR Representatives a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits thereto and documents filed therewith or incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as FBR the Representatives may reasonably request.
(i) The Company will apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus.;
(j) The Company will to furnish to FBReach Representative, not less than two Business Days business days before a filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (fh) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14 14, or 15(d) of the Exchange Act and during such period will to file all such documents in a manner and within the time periods required by the Exchange Act.Act and the Exchange Act Regulations;
(k) The Company will to apply the net proceeds of the sale of the Shares in accordance with the statements under the caption "Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not selllater than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement, offeran earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, contract to sellat the option of the Company, pledge, register, grant any option to purchase or otherwise dispose of, directly or indirectly, any shares complying with the provisions of capital stock, or any securities convertible into, or exercisable, exchangeable or redeemable for shares Rule 158 of capital stock for the Securities Act Regulations) covering a period of 45 12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing, quotation or inclusion of the Shares on the American Stock Exchange or the New York Stock Exchange, or in the Nasdaq National Market (each an "Exchange") and to file with such Exchange all documents and notices required by the Exchange of companies that have securities that are listed on or included in such Exchange;
(n) to refrain during a period of 90 days after from the date hereof (of the "Lock-Up Period")Prospectus, without the prior written consent of FBRFriedman, Billings, Xxxxxx & Co., Inc. and Xxxxxx, Xxxxxxxx & Company Incorporated, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise disposing of or transferring, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (iA) the Shares to be sold hereunder, hereunder and (iiB) any shares of Common Stock Shares issued by the Company upon the exercise of an option any options outstanding on the date hereof and referred to in the Prospectus, (iii) the granting of options pursuant to the Company's Second Amended and Restated 1997 Employee Stock Option Plan (not to exceed 500,000 options not exercisable within the Lock-Up Period), (iv) the payment in stock to directors of the Company of a portion of their annual or other directors fees, (v) the filing of any shelf registration statement after thirty days from the date hereof, (vi) the filing of any registration statement, including any amendment thereto, relating to the registration rights granted to certain stockholders in accordance with the Merger Agreement or any dividend reinvestment and/or stock purchase plan to be instituted by the Company or (vii) shares of Common Stock issued pursuant to the Company's existing Discount Waiver, Direct Stock Purchase and Dividend Reinvestment Plan.;
(lo) The Company will to not, and to use its best efforts to cause the Shares to be listed on the NYSE its officers, directors and to maintain such listing and to file with the NYSE all documents and notices required by the NYSE of companies that have securities that are listed on the NYSE.
(m) The Company will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company, (iii) access to the assets of the Company is permitted only in accordance with management's authorization and (iv) the recorded accounts of the assets of the Company are compared with existing assets at reasonable intervals.
(n) The Company will engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(o) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters, except as set forth under Section 5 hereof or in clause (iii) or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers affiliates (including costs of mailing and shipment), (ii) the issuance, sale and delivery of the Shares by the Company, (iii) the qualification, if any, of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (the legal fees and filing fees and other disbursements of counsel to 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 NYSE and any registration thereof under the Exchange Act, (v) the filing, if any, for review of the public offering of the Shares by the NASD, (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 Shares to prospective investors and the Underwriters' sales forces, including, without limitation, expenses associated with the production of road show slides and graphicsFBR) not to, 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 (vii) the performance of the Company's other obligations hereunder.
(p) The Company will not (i) take, directly or indirectly, indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the SharesCompany, (ii) sell, bid for, purchase or pay any Person (other than as contemplated by the provisions hereof) anyone any compensation for soliciting purchases of the Shares, Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any Person person any compensation for soliciting any order to purchase any other securities of the Company.;
(p) the Company will maintain, at the Company's expense, a registrar and transfer agent for the Common Shares;
(q) The the Company will use its best efforts to continue to qualify as a REIT under the Code and to cause Pegasus to continue to be registered as a broker-dealer with the Commission, the NASD, the SIPC and other applicable state and other regulatory authorities;
(r) the Company will comply with all of the provisions of any undertakings in the Registration Statement;
(s) the Company and the Subsidiaries will conduct their affairs in such a manner so as to ensure that neither the Company nor any Subsidiary will be an "investment company" or an entity subject to regulation as an investment company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the Representatives' reasonable opinion the market price of the Common Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event;
(u) to maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(v) not to invest in futures contracts, options on futures contracts or options on commodities unless the Company is exempt from the registration requirements of the Commodity Exchange ActAct of 1978, as amendedamended (the "CEA"), or otherwise complies with the Commodity Exchange Act, as amendedCEA. In addition, the Company will not engage in any activities which might be subject to the Commodity Exchange Act, as amendedCEA, unless such activities are exempt from that act Act or otherwise comply with that act Act or with an applicable no-action letter to the Company from the Commodities Futures Trading Commission.
(r) The Company will comply with all of the provisions of any undertakings in the Registration Statement.
(s) The Company has been organized and operated in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the Company's proposed methods of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for subsequent taxable years.
(t) The Company will not be or become, at any time prior to the expiration of three years after the date of the Agreement, an "investment company," as such term is defined in the Investment Company Act.
(u) The Company has retained Ernst & Young LLP as its qualified accountants and qualified tax experts (i) to test procedures and conduct annual compliance reviews designed to determine compliance with the REIT provisions of the Code and (ii) to otherwise assist the Company in monitoring appropriate accounting systems and procedures designed to determine compliance with the REIT provisions of the Code.
(v) The Company will comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof and the Prospectus.; and
(w) The Company will maintain such controls to file timely and other procedures, including, without limitation, those required by Sections 302 and 906 accurate reports with the Commission in accordance with Rule 463 of the Sarbanes-Oxley Securities Act and the applicable regulations thereunder, that are xxxxxxxx xx xnsure that information required to be disclosed by the Company in the reports that it files Regulations or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the Company is made known to them by others within those entities, particularly during the period in which such periodic reports are being preparedany successor provision.
(x) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley Act.
Appears in 1 contract
Samples: Underwriting Agreement (FBR Asset Investment Corp/Va)
