Company Agreements. (a) During the Standstill Term, the Company shall not take any action or omit to take any action that would prevent or impede the Holder or its Affiliates from acquiring beneficial ownership of Shares of Then Outstanding Common Stock and/or Common Stock Equivalents to the extent that, after giving effect to such acquisition, the Standstill Parties would beneficially own less than the Standstill Limit, including by adopting a shareholder rights plan applicable to the Standstill Parties that contains a threshold below the Standstill Limit if such shareholder rights plan does not otherwise permit the Holder to beneficially own up to the Standstill Limit, provided, however, that nothing contained in this Section 5.2 or elsewhere in this Warrant shall affect the Company’s ability to (i) take and disclose a position in accordance with Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) make any disclosure to the Company’s stockholders, in each case if, in the good faith judgment of the Company’s Board of Directors, the failure to take such position and/or make such disclosure would be inconsistent with the directors’ fiduciary duties under applicable law or any disclosure requirements under applicable law. During the Standstill Term, Holder shall, and shall cause its Affiliates to, not take any action or omit to take any action that would prevent or impede the Company or its Affiliates from maintaining and enforcing the provisions of the Shareholder Rights Agreement, dated August 11, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as amended and in effect on the date hereof (the “Rights Plan”), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval. (b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock. (c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” shall instead be the percentage of Shares of Then Outstanding Common Stock beneficially owned, in the aggregate, by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%) of the Shares of Then Outstanding Common Stock.
Appears in 1 contract
Samples: Warrant Agreement (Vericel Corp)
Company Agreements. The Company agrees with each of the Selling Stockholders and the Underwriter:
(a) During To prepare the Standstill TermProspectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430B under the Act; to make no further amendment or any supplement to the Registration Statement, Pricing Disclosure Package or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not take be required to qualify as a foreign corporation or to file a general consent to service of process in any action jurisdiction, or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to take state any action material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act is given), not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case the Underwriter is required to deliver a prospectus (or in lieu thereof, give the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of the Underwriter, to prepare and deliver to the Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company’s securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date 30 days after the date of the Prospectus (the “Lock-Up Period”), not to file any registration statement on behalf of Fortress Investment Group LLC or any of its affiliates and not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that would prevent are substantially similar to the Shares, including but not limited to any securities that are convertible into or impede exchangeable for, or that represent the Holder or its Affiliates from acquiring beneficial ownership of Shares of Then Outstanding right to receive, Common Stock and/or or any such substantially similar securities (other than (i) to holders of shares of the common stock or other securities of Emeritus pursuant to the Company’s registration statement on Form S-4 in connection with the transactions contemplated by the Merger Agreement, (ii) pursuant to the Company’s Omnibus Stock Incentive Plan or any other stock incentive or purchase plans existing on the date of this Agreement or approved by the Company’s shareholders after the date hereof, or pursuant to any registration statement on Form S-8, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement, (iii) the issuance of shares of Common Stock Equivalents to in exchange for the extent thatassets of, after giving effect to or a majority or controlling portion of the equity of, another entity in connection with the acquisition by the Company or any of its subsidiaries of such acquisitionentity other than as contemplated by the Merger Agreement, (iv) the Standstill Parties would beneficially own less than filing of a shelf registration statement on Form S-3ASR or a registration statement on Form S-8 by the Standstill Limit, including by adopting a shareholder rights plan applicable to Company and (v) the Standstill Parties that contains a threshold below increase in the Standstill Limit if such shareholder rights plan does not otherwise permit number of authorized shares of common stock in the Holder to beneficially own up to Company’s Certificate of Incorporation as contemplated for the Standstill Limit, Merger Agreement; provided, however, that nothing contained that, in the case of clause (iii), (y) the aggregate market value of all such shares may not exceed $100 million and (z) prior to the issuance of such shares, each recipient of such shares shall agree in writing with you, in an agreement in the form to be agreed to by you, not to sell, offer, dispose or otherwise transfer any such shares or options during such 30-day period, without your prior written consent), without the prior written consent of the Underwriter;
(f) Unless otherwise publicly available in electronic format on the website of the Company or the Commission, during a period of one year from the date of this Section 5.2 agreement, to furnish to you copies of all reports or elsewhere in this Warrant shall affect the Company’s ability to other communications (ifinancial or other) take and disclose a position in accordance with Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) make any disclosure furnished to the Company’s stockholders, and to deliver to you as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed, other than such reports and financial statements that are publicly available on the Commission’s XXXXX system;
(g) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in each case ifcompliance with Rule 462(b) by 10:00 P.M., in Washington, D.C. time, on the good faith judgment date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(h) Upon request of the Underwriter, to furnish, or cause to be furnished, to the Underwriter an electronic version of the Company’s Board trademarks, servicemarks and corporate logo for use on the website, if any, operated by the Underwriter for the purpose of Directors, facilitating the failure to take such position and/or make such disclosure would be inconsistent with the directors’ fiduciary duties under applicable law or any disclosure requirements under applicable law. During the Standstill Term, Holder shall, and shall cause its Affiliates to, not take any action or omit to take any action that would prevent or impede the Company or its Affiliates from maintaining and enforcing the provisions on-line offering of the Shareholder Rights Agreement, dated August 11, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as amended and in effect on the date hereof Shares (the “Rights PlanLicense”), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval.
(b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock.
(c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” License shall instead be used solely for the percentage of Shares of Then Outstanding Common Stock beneficially ownedpurpose described above, in the aggregate, by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%) of the Shares of Then Outstanding Common Stockis granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (Brookdale Senior Living Inc.)
Company Agreements. The Company agrees with each of the Selling Stockholders and the Underwriter:
(a) During To prepare the Standstill TermProspectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430B under the Act; to make no further amendment or any supplement to the Registration Statement, Pricing Disclosure Package or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not take be required to qualify as a foreign corporation or to file a general consent to service of process in any action jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to take state any action material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act is given), not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case the Underwriter is required to deliver a prospectus (or in lieu thereof, give the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of the Underwriter, to prepare and deliver to the Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company’s securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date 60 days after the date of the Prospectus (the “Initial Lock-Up Period”), not to file any registration statement on behalf of Fortress Investment Group LLC or any of their respective affiliates and not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that would prevent are substantially similar to the Shares, including but not limited to any securities that are convertible into or impede exchangeable for, or that represent the Holder or its Affiliates from acquiring beneficial ownership of Shares of Then Outstanding right to receive, Common Stock and/or or any such substantially similar securities (other than (i) pursuant to the Company’s Omnibus Stock Incentive Plan or any other stock incentive or purchase plans existing on the date of this Agreement or approved by the Company’s shareholders after the date hereof, or pursuant to any registration statement on Form S-8, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement and (ii) the issuance of shares of Common Stock Equivalents in exchange for the assets of, or a majority or controlling portion of the equity of, another entity in connection with the acquisition by the Company or any of its subsidiaries of such entity; provided, however, that, (y) the aggregate market value of all such shares may not exceed $100 million and (z) prior to the extent thatissuance of such shares, after giving effect each recipient of such shares shall agree in writing with you, in an agreement in the form to be agreed to by you, not to sell, offer, dispose or otherwise transfer any such acquisitionshares or options during such 60-day period, without your prior written consent), without the Standstill Parties would beneficially own less than prior written consent of the Standstill Limit, including by adopting a shareholder rights plan applicable to the Standstill Parties that contains a threshold below the Standstill Limit if such shareholder rights plan does not otherwise permit the Holder to beneficially own up to the Standstill Limit, Underwriter; provided, however, that nothing contained if (1) during the last 17 days of the Initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the Initial Lock-Up Period, then in this Section 5.2 each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or elsewhere the announcement of the material news or material event, as applicable, unless the Underwriter waives, in this Warrant shall affect writing, such extension; the Company will provide the Underwriter with prior notice of any such announcement that gives rise to an extension of the Initial Lock-Up Period;
(f) Unless otherwise publicly available in electronic format on the website of the Company or the Commission, to furnish to the Company’s ability stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date hereof), to make available to the Company’s stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(ig) take and disclose Unless otherwise publicly available in electronic format on the website of the Company or the Commission, during a position in accordance with Rule 14d-9period of three years from the effective date of the Registration Statement, Rule 14e-2(ato furnish to you copies of all reports or other communications (financial or other) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) make any disclosure furnished to the Company’s stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed, other than such reports and financial statements that are publicly available on the Commission’s EXXXX system; and (ii) such additional information concerning the business and financial condition of the Company as you 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 consolidated in each case ifreports furnished to its stockholders generally or to the Commission);
(h) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the good faith judgment date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon request of the Underwriter, to furnish, or cause to be furnished, to the Underwriter an electronic version of the Company’s Board trademarks, servicemarks and corporate logo for use on the website, if any, operated by the Underwriter for the purpose of Directors, facilitating the failure to take such position and/or make such disclosure would be inconsistent with the directors’ fiduciary duties under applicable law or any disclosure requirements under applicable law. During the Standstill Term, Holder shall, and shall cause its Affiliates to, not take any action or omit to take any action that would prevent or impede the Company or its Affiliates from maintaining and enforcing the provisions on-line offering of the Shareholder Rights Agreement, dated August 11, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as amended and in effect on the date hereof Shares (the “Rights PlanLicense”), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval.
(b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock.
(c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” License shall instead be used solely for the percentage of Shares of Then Outstanding Common Stock beneficially ownedpurpose described above, in the aggregate, by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%) of the Shares of Then Outstanding Common Stockis granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (Brookdale Senior Living Inc.)
Company Agreements. The Company agrees with the Underwriters:
(a) During To prepare the Standstill TermProspectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430B under the Act; to make no further amendment or any supplement to the Registration Statement, Pricing Disclosure Package or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not take be required to qualify as a foreign corporation or to file a general consent to service of process in any action jurisdiction, or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to take state any action material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act is given), not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to the Underwriters and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case the Underwriters are required to deliver a prospectus (or in lieu thereof, give the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of the Underwriters, to prepare and deliver to the Underwriters as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company’s securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date 60 days after the date of the Prospectus (the “Lock-Up Period”), not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that would prevent are substantially similar to the Shares, including but not limited to any securities that are convertible into or impede exchangeable for, or that represent the Holder or its Affiliates from acquiring beneficial ownership of Shares of Then Outstanding right to receive, Common Stock and/or or any such substantially similar securities (other than (i) pursuant to the Company’s Omnibus Stock Incentive Plan, the 2014 Omnibus Incentive Plan or any other stock incentive or purchase plans existing on the date of this Agreement or approved by the Company’s shareholders after the date hereof, or pursuant to any registration statement on Form S-8, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement and (ii) the issuance of shares of Common Stock Equivalents to in exchange for the extent thatassets of, after giving effect to or a majority or controlling portion of the equity of, another entity in connection with the acquisition by the Company or any of its subsidiaries of such acquisition, the Standstill Parties would beneficially own less than the Standstill Limit, including by adopting a shareholder rights plan applicable to the Standstill Parties that contains a threshold below the Standstill Limit if such shareholder rights plan does not otherwise permit the Holder to beneficially own up to the Standstill Limit, entity; provided, however, that nothing contained in this Section 5.2 or elsewhere in this Warrant shall affect the Company’s ability to (i) take and disclose a position in accordance with Rule 14d-9, Rule 14e-2(a) or Item 1012(a) case of Regulation M-A promulgated under the Exchange Act or clause (ii) make of this paragraph (y) the aggregate market value of all such shares may not exceed $100 million and (z) prior to the issuance of such shares, each recipient of such shares shall agree in writing with you, in an agreement in the form to be agreed to by you, not to sell, offer, dispose or otherwise transfer any disclosure such shares or options during such 60-day period, without your prior written consent), without the prior written consent of the Representatives;
(f) Unless otherwise publicly available in electronic format on the website of the Company or the Commission, during a period of one year from the date of this agreement, to furnish to you copies of all reports or other communications (financial or other) furnished to the Company’s stockholders, and to deliver to you as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed, other than such reports and financial statements that are publicly available on the Commission’s XXXXX system;
(g) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in each case ifcompliance with Rule 462(b) by 10:00 P.M., in Washington, D.C. time, on the good faith judgment date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(h) Upon request of the Underwriters, to furnish, or cause to be furnished, to the Underwriter an electronic version of the Company’s Board trademarks, servicemarks and corporate logo for use on the website, if any, operated by the Underwriters for the purpose of Directors, facilitating the failure to take such position and/or make such disclosure would be inconsistent with the directors’ fiduciary duties under applicable law or any disclosure requirements under applicable law. During the Standstill Term, Holder shall, and shall cause its Affiliates to, not take any action or omit to take any action that would prevent or impede the Company or its Affiliates from maintaining and enforcing the provisions on-line offering of the Shareholder Rights Agreement, dated August 11, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as amended and in effect on the date hereof Shares (the “Rights PlanLicense”), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval.
(b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock.
(c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” License shall instead be used solely for the percentage purpose described above, is granted without any fee and may not be assigned or transferred;
(i) To apply the net proceeds from the sale of the Shares of Then Outstanding Common Stock beneficially owned, as described in the aggregateRegistration Statement, the Pricing Disclosure Package and the Prospectus under the heading “Use of Proceeds”;
(j) The Company has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(k) To use its reasonable best efforts to cause the Shares to be listed on the New York Stock Exchange (the “Exchange”); and
(l) If by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, third anniversary (the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form satisfactory to you. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form satisfactory to you and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of Then Outstanding Common Stockthe Shares to continue as contemplated in the expired registration statement relating to the Shares. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (Brookdale Senior Living Inc.)
Company Agreements. The Company agrees with each of the Selling Stockholders and the Underwriter:
(a) During To prepare the Standstill TermProspectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s clo0se 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 430B under the Act; to make no further amendment or any supplement to the Registration Statement, Pricing Disclosure Package or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not take be required to qualify as a foreign corporation or to file a general consent to service of process in any action jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to take state any action material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act is given), not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case the Underwriter is required to deliver a prospectus (or in lieu thereof, give the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of the Underwriter, to prepare and deliver to the Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company’s securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date 60 days after the date of the Prospectus (the “Initial Lock-Up Period”), not to file any registration statement on behalf of Fortress Investment Group LLC or any of their respective affiliates and not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that would prevent are substantially similar to the Shares, including but not limited to any securities that are convertible into or impede exchangeable for, or that represent the Holder or its Affiliates from acquiring beneficial ownership of Shares of Then Outstanding right to receive, Common Stock and/or or any such substantially similar securities (other than (i) pursuant to the Company’s Omnibus Stock Incentive Plan or any other stock incentive or purchase plans existing on the date of this Agreement or approved by the Company’s shareholders after the date hereof, or pursuant to any registration statement on Form S-8, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement and (ii) the issuance of shares of Common Stock Equivalents in exchange for the assets of, or a majority or controlling portion of the equity of, another entity in connection with the acquisition by the Company or any of its subsidiaries of such entity; provided, however, that, (y) the aggregate market value of all such shares may not exceed $100 million and (z) prior to the extent thatissuance of such shares, after giving effect each recipient of such shares shall agree in writing with you, in an agreement in the form to be agreed to by you, not to sell, offer, dispose or otherwise transfer any such acquisitionshares or options during such 60-day period, without your prior written consent), without the Standstill Parties would beneficially own less than prior written consent of the Standstill Limit, including by adopting a shareholder rights plan applicable to the Standstill Parties that contains a threshold below the Standstill Limit if such shareholder rights plan does not otherwise permit the Holder to beneficially own up to the Standstill Limit, Underwriter; provided, however, that nothing contained if (1) during the last 17 days of the Initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the Initial Lock-Up Period, then in this Section 5.2 each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or elsewhere the announcement of the material news or material event, as applicable, unless the Underwriter waives, in this Warrant shall affect writing, such extension; the Company will provide the Underwriter with prior notice of any such announcement that gives rise to an extension of the Initial Lock-Up Period;
(f) Unless otherwise publicly available in electronic format on the website of the Company or the Commission, to furnish to the Company’s ability stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date hereof), to make available to the Company’s stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(ig) take and disclose Unless otherwise publicly available in electronic format on the website of the Company or the Commission, during a position in accordance with Rule 14d-9period of three years from the effective date of the Registration Statement, Rule 14e-2(ato furnish to you copies of all reports or other communications (financial or other) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) make any disclosure furnished to the Company’s stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed, other than such reports and financial statements that are publicly available on the Commission’s EXXXX system; and (ii) such additional information concerning the business and financial condition of the Company as you 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 consolidated in each case ifreports furnished to its stockholders generally or to the Commission);
(h) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the good faith judgment date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon request of the Underwriter, to furnish, or cause to be furnished, to the Underwriter an electronic version of the Company’s Board trademarks, servicemarks and corporate logo for use on the website, if any, operated by the Underwriter for the purpose of Directors, facilitating the failure to take such position and/or make such disclosure would be inconsistent with the directors’ fiduciary duties under applicable law or any disclosure requirements under applicable law. During the Standstill Term, Holder shall, and shall cause its Affiliates to, not take any action or omit to take any action that would prevent or impede the Company or its Affiliates from maintaining and enforcing the provisions on-line offering of the Shareholder Rights Agreement, dated August 11, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as amended and in effect on the date hereof Shares (the “Rights PlanLicense”), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval.
(b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock.
(c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” License shall instead be used solely for the percentage of Shares of Then Outstanding Common Stock beneficially ownedpurpose described above, in the aggregate, by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%) of the Shares of Then Outstanding Common Stockis granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (Brookdale Senior Living Inc.)
Company Agreements. The Company agrees with the Underwriter that:
(a) During The Company will furnish to the Standstill TermUnderwriter and to counsel for the Underwriter, without charge, signed copies of the Registration Statement (including exhibits thereto) and will furnish to the Underwriter during the period referred to in paragraph (c) below, as many copies of the Time of Sale Prospectus, the Prospectus and any amendments and supplements thereto as they may reasonably request no later than 5:00 p.m., New York City time, on the day immediately following the date hereof.
(b) The Company shall will not make any amendment or supplement to the Time of Sale Prospectus or the Prospectus without the prior written consent of the Underwriter (not to be unreasonably withheld or delayed).
(c) The Company will furnish the Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Underwriter reasonably objects.
(d) The Company will not take any action that would result in the Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus or Company information prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which, in the opinion of counsel for the Underwriter or counsel for the Company, it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which, in the opinion of counsel for the Underwriter or counsel for the Company, the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriter or counsel for the Company, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company will promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If at any time when a prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) relating to the Shares is required to be delivered under the Securities Act, any event occurs as a result of which, in the opinion of counsel for the Underwriter and counsel for the Company, it is necessary to amend or supplement the Prospectus, as then amended or supplemented, (i) in order that the Prospectus would not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) comply with applicable law, the Company will promptly (A) notify the Underwriter of any such event; (B) subject to the requirements of paragraph (b) of this Section 6, prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (C) supply any supplemented or amended Prospectus to the Underwriter and counsel for the Underwriter without charge in such quantity as the Underwriter may reasonably request.
(g) The Company will arrange, if necessary, for the qualification of the Shares for sale by the Underwriter under the laws of such jurisdictions as the Underwriter may designate and will maintain such qualifications in effect so long as required for the sale of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would prevent subject it to service of process in suits, other than those arising out of the offering or impede sale of the Holder Shares, in any jurisdiction where it is not now so subject or its Affiliates from acquiring beneficial ownership to subject itself to taxation in excess of Shares a nominal amount in respect of Then Outstanding Common Stock and/or Common Stock Equivalents doing business in any jurisdiction. The Company will promptly advise the Underwriter of the receipt by the Company of any notification with respect to the extent thatsuspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(h) The Company agrees that it will not take, after giving effect directly or indirectly, any action designed to such acquisitionor which has constituted or which might reasonably be expected to cause or result, the Standstill Parties would beneficially own less than the Standstill Limit, including by adopting a shareholder rights plan applicable to the Standstill Parties that contains a threshold below the Standstill Limit if such shareholder rights plan does not otherwise permit the Holder to beneficially own up to the Standstill Limit, provided, however, that nothing contained in this Section 5.2 or elsewhere in this Warrant shall affect the Company’s ability to (i) take and disclose a position in accordance with Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or otherwise, in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing (or reproduction), delivery (including postage, air freight charges and charges for counting and packaging) and filing of copies of any Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by or referred to by the Company and the Registration Statement, and all amendments or supplements to any of the foregoing, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (ii) make any disclosure stamp or transfer taxes in connection with the sale and delivery of the Shares; (iii) the printing (or reproduction) and delivery of this Agreement and any blue sky memorandum delivered to investors in connection with the offering of the Shares; (iv) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 5(d) (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating to such registration and qualification); (v) all filing fees and the reasonable fees and disbursements of counsel to the Company’s stockholdersUnderwriter incurred in connection with the review and qualification, in each case ifby the NASD, in of the good faith judgment offering of the Shares (vi) all costs and expenses incident to listing the Shares on the NYSE; (vii) the cost of printing certificates representing the Shares; (viii) the costs and charges of any transfer agent, registrar or depositary; (ix) the fees and expenses of the Company’s Board accountants and the fees and expenses of Directorscounsel (including local and special counsel) for the Company and the Selling Stockholder; and (xi) all other costs and expenses incident to the performance by the Company and/or the Selling Stockholder of their respective obligations hereunder.
(j) Prior to the termination of the offering of the Shares, the failure Company will not file any amendment of the Registration Statement or supplement to take the Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such position and/or make such disclosure would proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A or Rule 430B, or filing of the Prospectus is otherwise required under Rule 424(b), the Company will cause the Prospectus, properly completed, and any supplement thereto to be inconsistent filed in a form approved by the Underwriter with the directors’ fiduciary duties under Commission pursuant to the applicable law or any disclosure requirements under applicable lawparagraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Underwriter of such timely filing. During The Company will promptly advise the Standstill Term, Holder shallUnderwriter (1) when the Prospectus, and any supplement thereto, shall cause have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its Affiliates tostaff for any amendment of the Registration Statement, not take or for any action supplement to the Prospectus or omit to take for any action additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that would prevent or impede purpose and (5) 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 institution or threatening of any proceeding for such purpose. The Company will use its Affiliates from maintaining best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(k) The Company will comply with all applicable securities and enforcing other applicable laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Shareholder Rights AgreementSarbanes Oxley Act.
(l) As soon as practicable, dated August 11, 2011, by the Company will make generally available to its security holders and between to the Underwriter an earnings statement or statements of the Company and Continental Stock Transfer & Trust Company, as amended and in effect on the date hereof (the “Rights Plan”), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval.
(b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock.
(c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate subsidiaries which will satisfy the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” shall instead be the percentage of Shares of Then Outstanding Common Stock beneficially owned, in the aggregate, by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%11(a) of the Shares of Then Outstanding Common StockSecurities Act and Rule 158 under the Securities Act.
Appears in 1 contract
Company Agreements. The Company agrees with each of the Selling Stockholders and the Underwriter:
(a) During To prepare the Standstill TermProspectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430B under the Act; to make no further amendment or any supplement to the Registration Statement, Pricing Disclosure Package or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, promptly to use its reasonable best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not take be required to qualify as a foreign corporation or to file a general consent to service of process in any action jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to take state any action material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered (or in lieu thereof, the notice referred to in Rule 173(a) under the Act is given), not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to the Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case the Underwriter is required to deliver a prospectus (or in lieu thereof, give the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of the Underwriter, to prepare and deliver to the Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company’s securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date 60 days after the date of the Prospectus (the “Initial Lock-Up Period”), not to file any registration statement on behalf of Fortress Investment Group LLC or any of their respective affiliates and not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that would prevent are substantially similar to the Shares, including but not limited to any securities that are convertible into or impede exchangeable for, or that represent the Holder or its Affiliates from acquiring beneficial ownership of Shares of Then Outstanding right to receive, Common Stock and/or or any such substantially similar securities (other than (i) pursuant to the Company’s Omnibus Stock Incentive Plan or any other stock incentive or purchase plans existing on the date of this Agreement or approved by the Company’s shareholders after the date hereof, or pursuant to any registration statement on Form S-8, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement and (ii) the issuance of shares of Common Stock Equivalents in exchange for the assets of, or a majority or controlling portion of the equity of, another entity in connection with the acquisition by the Company or any of its subsidiaries of such entity; provided, however, that, (y) the aggregate market value of all such shares may not exceed $100 million and (z) prior to the extent thatissuance of such shares, after giving effect each recipient of such shares shall agree in writing with you, in an agreement in the form to be agreed to by you, not to sell, offer, dispose or otherwise transfer any such acquisitionshares or options during such 60-day period, without your prior written consent), without the Standstill Parties would beneficially own less than prior written consent of the Standstill Limit, including by adopting a shareholder rights plan applicable to the Standstill Parties that contains a threshold below the Standstill Limit if such shareholder rights plan does not otherwise permit the Holder to beneficially own up to the Standstill Limit, Underwriter; provided, however, that nothing contained if (1) during the last 17 days of the Initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 15-day period following the last day of the Initial Lock-Up Period, then in this Section 5.2 each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or elsewhere the announcement of the material news or material event, as applicable, unless the Underwriter waives, in this Warrant shall affect writing, such extension; the Company will provide the Underwriter with prior notice of any such announcement that gives rise to an extension of the Initial Lock-Up Period;
(f) Unless otherwise publicly available in electronic format on the website of the Company or the Commission, to furnish to the Company’s ability stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date hereof), to make available to the Company’s stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(ig) take and disclose Unless otherwise publicly available in electronic format on the website of the Company or the Commission, during a position in accordance with Rule 14d-9period of three years from the effective date of the Registration Statement, Rule 14e-2(ato furnish to you copies of all reports or other communications (financial or other) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) make any disclosure furnished to the Company’s stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed, other than such reports and financial statements that are publicly available on the Commission’s EXXXX system; and (ii) such additional information concerning the business and financial condition of the Company as you 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 consolidated in each case ifreports furnished to its stockholders generally or to the Commission);
(h) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act;
(i) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the good faith judgment date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(j) Upon request of the Underwriter, to furnish, or cause to be furnished, to the Underwriter an electronic version of the Company’s Board trademarks, servicemarks and corporate logo for use on the website, if any, operated by the Underwriter for the purpose of Directors, facilitating the failure to take such position and/or make such disclosure would be inconsistent with the directors’ fiduciary duties under applicable law or any disclosure requirements under applicable law. During the Standstill Term, Holder shall, and shall cause its Affiliates to, not take any action or omit to take any action that would prevent or impede the Company or its Affiliates from maintaining and enforcing the provisions on-line offering of the Shareholder Rights Agreement, dated August 11, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as amended and in effect on the date hereof Shares (the “Rights PlanLicense”), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval.
(b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock.
(c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” License shall instead be used solely for the percentage of Shares of Then Outstanding Common Stock beneficially ownedpurpose described above, in the aggregate, by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%) of the Shares of Then Outstanding Common Stockis granted without any fee and may not be assigned or transferred.
Appears in 1 contract
Samples: Underwriting Agreement (Brookdale Senior Living Inc.)
Company Agreements. The Company agrees with each Underwriter that:
(a) During Prior to the Standstill Termtermination of the offering of the Common Shares, the Company will not file any amendment to the Registration Statement, any preliminary prospectus, the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy of the same. Subject to the foregoing sentence, the Company will cause the Prospectus and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide reasonable evidence to the Underwriters of such timely filing. The Company will promptly advise the Underwriters (1) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Common Shares, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Common Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will furnish each Underwriter a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Underwriters reasonably object.
(c) The Company will not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus or Company information prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(d) If the Time of Sale Prospectus is being used to solicit offers to buy the Common Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which, in the opinion of counsel for the Underwriters or counsel for the Company, it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which, in the opinion of counsel for the Underwriters or counsel for the Company, the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters or counsel for the Company, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company will promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(e) If, at any time when a prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Act) relating to the Common Shares is required to be delivered under the Act, any event occurs as a result of which the Time of Sale Prospectus or the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Time of Sale Prospectus or the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company will promptly (1) notify the Underwriters of such event, (2) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Prospectus to you in such quantities as you may reasonably request.
(f) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(g) The Company will furnish to the Underwriters and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and to the Underwriters a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Act) by the Underwriters or any dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(h) The Company will arrange, if necessary, for the qualification of the Common Shares for sale under the laws of such jurisdictions as the Underwriters may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Common Shares and will pay any fee of the National Association of Securities Dealers, Inc. (the “NASD”), in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would prevent subject it to service of process in suits, other than those arising out of the offering or impede sale of the Holder or its Affiliates from acquiring beneficial ownership of Shares of Then Outstanding Common Stock and/or Common Stock Equivalents to the extent thatShares, after giving effect to such acquisition, the Standstill Parties would beneficially own less than the Standstill Limit, including by adopting a shareholder rights plan applicable to the Standstill Parties that contains a threshold below the Standstill Limit if such shareholder rights plan does in any jurisdiction where it is not otherwise permit the Holder to beneficially own up to the Standstill Limit, provided, however, that nothing contained in this Section 5.2 or elsewhere in this Warrant shall affect the Company’s ability to now so subject.
(i) take (i) The Company will not, and disclose a position each of the Selling Shareholders agrees that it will not, without the prior written consent of the Managers on behalf of the Underwriters, during the period ending 90 days after the date of the Prospectus, (A) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (B) enter into any swap or other arrangement that transfers to another, in accordance with Rule 14d-9whole or in part, Rule 14e-2(aany of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (A) or Item 1012(a(B) above is to be settled by delivery of Regulation M-A promulgated under the Exchange Act Common Stock or such other securities, in cash or otherwise or (iiC) make in the case of the Company, file any disclosure registration statement with the Securities and Exchange Commission relating to the offering of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than (1) any amendment (including a post-effective amendment) to the Company’s stockholders, in each case if, in registration statement on Form S-1 (File no. 333-138340) relating to the good faith judgment sale of the Company’s Board up to 2,900,000 shares of Directors, the failure to take such position and/or make such disclosure would be inconsistent with the directors’ fiduciary duties under applicable law or any disclosure requirements under applicable law. During the Standstill Term, Holder shall, and shall cause its Affiliates to, not take any action or omit to take any action that would prevent or impede the Company or its Affiliates from maintaining and enforcing the provisions common stock of the Shareholder Rights Agreement, dated August 11, 2011, by and between the Company and Continental Stock Transfer & Trust Company, as amended and in effect (2) any registration statement on the date hereof (the “Rights Plan”Form S-8 relating to any existing stock incentive plans or employee benefit plans), including without limitation, by voting (or, if applicable, by executing a written consent with respect to) all of its and their Shares of Then Outstanding Common Stock in favor of any renewal of such shareholder rights plan or adoption of a replacement shareholder rights plan in each case that is materially consistent with the Rights Plan should the Company submit such renewal or adoption to the stockholders of the Company for their approval.
(b) Following expiration of the Standstill Term, the Company shall not take any action or omit to take any action that would force the Holder to dispose of any of its holdings of Shares of Then Outstanding Common Stock.
(c) Upon the expiration of the Standstill Term (the “Potential Standstill Term Expiration Date”), in the event that the Standstill Parties beneficially own, in the aggregate, at least fifteen percent (15%) of the Shares of Then Outstanding Common Stock, the Holder may deliver to the Company not later than five (5) business days following a Potential Standstill Term Expiration Date a written notice electing to reinstate the provisions of Section 5 and continue the Standstill Term as provided in this Section 5.2(c) (the “Election Notice Date”). If such election is made, the provisions of Section 5 shall be reinstated and the provisions of such sections, including the Standstill Term, shall be deemed to have remained in effect at all times without interruption or tolling notwithstanding the occurrence of a Potential Standstill Term Expiration Date; provided, however, that the “Standstill Limit” shall instead be the percentage of Shares of Then Outstanding Common Stock beneficially owned, in the aggregate, by the Standstill Parties as of the Potential Standstill Term Expiration Date. Following the Election Notice Date, the “Standstill Term” shall terminate on the date on which the Standstill Parties beneficially own, in the aggregate, less than fifteen percent (15%) of the Shares of Then Outstanding Common Stock.
Appears in 1 contract
