Appears in 2 contracts

Sources: Underwriting Agreement (Protea Biosciences Group, Inc.), Underwriting Agreement (Protea Biosciences Group, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for filing under the Securities Act and the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that purpose, and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the Representative as soon as practicable an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇▇. (vi) The Company shall furnish to the Representative and counsel for the Underwriters, without charge, three signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request. If applicable, the copies of the Registration Statement, Preliminary Prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the Representative and its counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representative may reasonably request and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or to execute a general consent to service of process in any such jurisdiction or to subject itself to taxation as doing business in any such jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered in connection with sales of the Shares under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of the Representative, for a period of 90 180 days after the date of this Agreement, the Company shall not issue, sell or register with the Commission, or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable or exchangeable for, equity securities of the Company), except for (a) the Shares to be sold hereunder; (b) any shares of capital stock of the Company issued upon the exercise of options granted under the Company’s stock incentive plan described as outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (d) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided that, other than with respect to shares issuable to Ligand and other holders of outstanding convertible notes of the Company, in each case as described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus, the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 5% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement. In the event that during this period, (I) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such 180 day period or (II) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 180 days after the date of this Agreement, such person will not, without the prior written consent of the Representative, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock) owned by such person. Notwithstanding the foregoing, the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period. (x) If the Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of the offering of the Shares, the Company shall make all filings required under applicable securities laws and by Nasdaq (including any required registration under the Exchange Act). (xii) Prior to the latest of the Closing Dates, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the Representative unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. (xiii) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “Use of Proceeds” in the Prospectus. (xiv) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the 90180-day restricted period referred to in Section 4(a)(ix). (xv) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (xvi) The Company represents and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and will not, make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping. The Company will satisfy the condition in Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq ~~Capital~~ [Capital][Global] Market. (xviii) As of the later of the Closing Dates, ~~if requested by the Representative,~~ the Company shall ~~retain~~ have retained a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement. (~~xix~~b) Provided that the Firm Shares are sold in accordance with the terms of this Agreement, the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed, to act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company or any Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) (each, a “Subject Transaction”). The Company ~~shall notify the Representative of its intention~~ agrees to ~~pursue a Subject Transaction~~pay, ~~including the material terms thereof, by providing written notice thereof by registered mail~~ or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence reimburse if paid by the Representative, ~~market conditions~~whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, ~~the absence~~ all of ~~a material adverse change to~~ the Company’s ~~business, financial condition~~ costs and ~~prospects, approval~~ expenses incident to the public offering of the ~~Rep~~Shares and the performance of the obligations of the Company under this Agreement, including those relating to: (i) all filing fees relating to the registration of the Shares to be sold in the Offering with the Commission; (ii) all actual Corporate Finance Filing System filing fees associated with the review of the Offering by FINRA; (iii) all fees and expenses relating to the listing of the Shares on the Nasdaq [Capital][Global] Market; (iv) all actual fees, expenses and disbursements relating to background checks of the Company’s officers and directors; (v) all actual fees, expenses and disbursements relating to the registration or qualification of the Shares under the “blue sky” securities laws of such states and other jurisdictions as the Representative may reasonably designate (including, without limitation, all filing and registration fees); (vi) all actual fees, expenses and disbursements relating to the registration, qualification or exemption of the Shares under the securities laws of such foreign jurisdictions as the Representative may reasonably designate; (vii) the costs of all mailing and printing of the underwriting documents (including, without limitation, the Underwriting Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power of Attorney), Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative may reasonably deem necessary; (viii) the costs of preparing, printing and delivering certificates representing the Shares; (ix) fees and expenses of the transfer agent for the shares of Common Stock; (x)

Appears in 1 contract

Sources: Underwriting Agreement (Viking Therapeutics, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for filing under the Securities Act and the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that purpose, and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a)) , an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the Representative as soon as practicable an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇. (vi) The Company shall furnish to the Representative and counsel for the Underwriters, without charge, three signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request. If applicable, the copies of the Registration Statement, Preliminary Prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the Representative and its counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representative may reasonably request and shall maintain such qualifications in effect so long as required for the distribution of the Shares; ~~provided~~provided , ~~however~~however , that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or to execute a general consent to service of process in any such jurisdiction or to subject itself to taxation as doing business in any such jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered in connection with sales of the Shares under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of the Representative, for a period of 90 180 days after the date of this Agreement, the Company shall not issue, sell or register with the Commission, or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable or exchangeable for, equity securities of the Company), except for (a) the Shares to be sold hereunder; (b) any shares of capital stock of the Company issued upon the exercise of options granted under the Company’s stock incentive plan described as outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (d) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided ~~that~~that , the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 510% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e)) , any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement; (f) any warrants, and the shares of capital issuable upon the exercise thereof, issued to any lender in connection with venture debt financing described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus. In the event that during this period, (I) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such 180 day period or (II) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 180 days after the date of this Agreement, such person will not, without the prior written consent of the Representative, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock) owned by such person. Notwithstanding the foregoing, the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period. (x) If the Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of the offering of the Shares, the Company shall make all filings required under applicable securities laws and by Nasdaq (including any required registration under the Exchange Act). (xii) Prior to the latest of the Closing Dates, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of ~~any of them~~the Company, or the offering of the Shares without the prior written consent of the Representative unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. (xiii) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “Use of Proceeds” in the Prospectus. (xiv) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the 90-day restricted period referred to in Section 4(a)(ix)) . (xv) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (xvi) The Company represents and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and will not, make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations (each, a ““ Permitted Free Writing ~~Prospectus~~Prospectus ”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping. The Company will satisfy the condition in Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq Capital Market. (xviii) As of the later of the Closing Dates, if requested by the Representative, the Company shall retain a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement[Intentionally Omitted]. (xix) Provided that the Firm Shares resulting in gross proceeds to the Company of at least $7,500,000 are sold in accordance with the terms of this ~~Agreement~~Agreement not later than June 23, 2016, the Representative shall have ~~an irrevocable~~ a right of first ~~refusal~~ offer (the ““ Right of First ~~Refusal~~Offer ”), for a period of ~~twelve~~ one (121) ~~months~~ year after the date the Offering is completed, to act as (A) lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company ~~or any Subsidiary~~ retains or otherwise uses (or seeks to retain or use) the services of an investment bank ~~or similar financial advisor~~ to pursue a registered, underwritten public offering of securities (in addition to the Offering), ) or a private placement of ~~securities, a merger, acquisition of another company~~ equity or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) convertible debt securities (each, a ““ Subject ~~Transaction~~Transaction ”)) if the aggregate gross proceeds for such Subject Transaction is expected to be less than or equal to $25,000,000 or (B) a co-manager, lead manager, placement agent or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company retains or otherwise uses (or seeks to retain or use) the services of an investment bank to pursue a Subject Transaction if the aggregate gross proceeds for such Subject Transaction is expected to be in excess of $25,000,000. The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the ~~material terms thereof~~type of security to be offered, the desired aggregate gross proceeds and whether the offering will be a private placement or a registered offering, by providing written notice thereof (a “ Subject Transaction Notice ”) by e-mail, registered mail or overnight courier service addressed to the ~~Representative~~Representative delivered in accordance with Section 9 of this Agreement. If the Representative fails to exercise its Right of First ~~Refusal~~ Offer with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction, including, without limitation, in the event that there are subsequent modifications to the proposed terms of such Subject Transaction set forth in the applicable Subject Transaction Notice. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First ~~Refusal~~ Offer with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the RepTransact

Appears in 1 contract

Sources: Underwriting Agreement (Phaserx, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act within the ~~applicable time~~ period prescribed for filing under the Securities Act and the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that ~~purpose,~~ purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the Representative as soon as ~~practicable~~ practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules~~; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇~~. (vi) The Company shall furnish to each of the Representative and counsel for the Underwriters, without charge, ~~three~~ a signed ~~copies~~ copy of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request. If applicable, the copies of the Registration Statement, ~~Preliminary Prospectus~~preliminary prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the Representative and its counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representative may reasonably request and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or ~~other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or~~ to execute a general consent to service of process in any ~~such~~ jurisdiction or to subject itself to taxation as doing business in any ~~such~~ jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered ~~in connection with sales of the Shares~~ under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of the ~~Representative~~Representatives, for a period of 90 days after the date of this Agreement, the Company shall not issue, sell or register with the Commission, or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable or exchangeable for, equity securities of the Company), except for (a) the Shares to be sold hereunder; (b) any shares of capital stock of the Company issued upon the exercise of options granted under the Company’s stock incentive plan or bonus plan described as outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan or bonus plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (d) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided that, the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 5% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the ~~Representative~~ Representatives an agreement substantially in the form of the Lock-Up Agreement; and (f) inducement restricted stock unit awards granted to new hires in accordance with NASDAQ Listing Rule 5635(c)(4) provided such awards shall not cover more than 200,000 shares of common stock in the aggregate and provided further that no such restricted stock units shall vest during such 90-day period. In the event that during this period, (IA) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such ~~180~~ 90 day period or (IIB) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such ~~180~~ 90 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not, without the prior written consent of the ~~Representative~~Representatives, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock) owned by such person. Notwithstanding the foregoing, the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period. (x) If The Company will use its best efforts to effect the ~~Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director~~ listing of the ~~Company and provide~~ Shares on the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiverNasdaq Capital Market. (xi) On or before completion of the offering of the Shares, the Company shall make all filings required under applicable securities laws and by Nasdaq (including any required registration under the Exchange Act). (xii) Prior to the ~~latest of the~~ Closing ~~Dates~~Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the Representative unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. (~~xiii~~xii) The Company will apply the net proceeds from the offering of the Shares substantially in the manner set forth under “Use of Proceeds” in the Prospectus. (~~xiv~~xiii) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the 90-day restricted period referred to in Section 4(a)(ix)) hereof. (xvxiv) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (~~xvi~~b) The Company agrees to pay, or reimburse if paid by the Representative, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all of the Company’s costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, reproduction filing and distribution of the Registration Statement including all exhibits thereto, each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, all amendments and supplements thereto and any document incorporated by reference therein, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 4(a)(vii), including the reasonable, actual and documented fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representative and to the Underwriters of copies of each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Prospectus, any Issuer Free Writing Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of FINRA in connection with its review of the terms of the public offering and reasonable, actual and documented fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for listing on the Nasdaq Capital Market; (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters; and (viii) all reasonable, actual and documented out-of-pocket costs and expenses incident to the offering and the performance of the obligations of the Representatives under this Agreement (including, without limitation, the reasonable, actual and documented fees and expenses of counsel to the Underwriters); provided, however, that such costs and expenses to be reimbursed by the Company to the Underwriters pursuant to this Section 4(b) shall not exceed $150,000 in the aggregate. (c) The Company acknowledges and agrees that each of the Underwriters has acted and is acting solely in the capacity of a principal in an arm’s length transaction between the Company, on the one hand, and the Underwriters, on the other hand, with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor, agent or fiduciary to the Company or any other person. Additionally, the Company acknowledges and agrees that the Underwriters have not and will not advise the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or any other person with respect thereto, whether arising prior to or after the date hereof. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions have been and will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary duty to the Company or any other person in connection with any such transaction or the process leading thereto. (d) The Company represents and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and will ~~not,~~ not make any offer relating to the Shares that would constitute a an “issuer free writing prospectus” as defined in Rule 405 of the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping. The Company will satisfy the condition in Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq Capital Market. (xviii) As of the later of the Closing Dates, if requested by the Representative, the Company shall retain a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement. (xix) Provided that the Firm Shares are sold in accordance with the terms of this Agreement, the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed, to act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company or any Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) (each, a “Subject Transaction”). The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof, by providing written notice thereof by registered mail or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Repw

Appears in 1 contract

Sources: Underwriting Agreement (Energous Corp)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for filing under the Securities Act and the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall use its best efforts to cause the Registration Statement to remain effective with a current prospectus for at least nine (9) months after the Applicable Time and shall use its commercially reasonable efforts to cause the Registration Statement to remain effective until such time as all of the Warrants have been exercised or terminated. The Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that purpose, and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the ~~Shares~~ Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the ~~Shares~~ Securities (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the Representative as soon as practicable an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇▇. (vi) The Company shall furnish to the Representative and counsel for the Underwriters, without charge, three signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request. If applicable, the copies of the Registration Statement, Preliminary Prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the Representative and its counsel in endeavoring to qualify the ~~Shares~~ Securities for offer and sale in connection with the offering under the laws of such jurisdictions as the Representative may reasonably request and shall maintain such qualifications in effect so long as required for the distribution of the ~~Shares~~Securities; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or to execute a general consent to service of process in any such jurisdiction or to subject itself to taxation as doing business in any such jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered in connection with sales of the ~~Shares~~ Securities under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of the Representative, for a period of 90 days after the date of this Agreement, the Company shall not issue, sell or register with the Commission, or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable or exchangeable for, equity securities of the Company), except for (a) the ~~Shares~~ Securities to be sold hereunder; (b) any shares of capital stock of the Company issued upon the exercise of options granted under the Company’s stock incentive plan or upon exercise or conversion of convertible securities issued on or prior to the date of this Agreement, all as described as outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (d) the filing by the Company of (i) any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the ~~Prospectus~~Prospectus or (ii) any registration statement to register the issuance or resale of the Warrant Shares; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity; or (f) securities required to be registered by the Company pursuant to the registration rights agreements entered into between March 31, 2015 and April 10, 2015; provided that, other than with respect to shares issuable to holders of outstanding convertible notes of the Company, in each case as described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus, the aggregate number of securities of the Company issued pursuant to ~~this~~ subsection (e) shall not exceed 5% of the Company’s outstanding common stock as of the ~~closing of the offering of the Shares~~Firm Closing; and provided further that as a condition to any transfer pursuant to ~~this~~ subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement. In the event that during this period, (I) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such ~~180~~ 90 day period or (II) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such ~~180~~ 90 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not, without the prior written consent of the Representative, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock) owned by such person. Notwithstanding the foregoing, the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period. (x) If the Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of the offering of the ~~Shares~~Securities, the Company shall make all filings required under applicable securities laws and by ~~Nasdaq~~ the OTCQB (including any required registration under the Exchange Act). (xii) Prior to the latest of the Closing Dates, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the ~~Shares~~ Securities without the prior written consent of the Representative unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. (xiii) The Company will apply the net proceeds from the offering of the ~~Shares~~ Securities in the manner set forth under “Use of Proceeds” in the Prospectus. (xiv) ~~The Company will promptly notify~~ If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the ~~Representative if~~ issuance or resale of the ~~Company ceases~~ Warrant Shares underlying such Warrant, the Warrant Shares issued pursuant to any such exercise shall be ~~an Emerging Growth Company~~ issued free of all restrictive legends. If at any time ~~prior to~~ following the ~~later of~~ date hereof, the Registration Statement (~~a) completion~~ or any subsequent registration statement registering the issuance or resale of the ~~distribution~~ Warrant Shares) is not effective or is not otherwise available for the issuance or resale of the ~~Shares within~~ Warrant Shares, the ~~meaning~~ Company shall immediately notify the holders of the ~~Securities Act~~ Warrants, as applicable, in writing that such registration statement is not then effective and ~~(b) completion~~ thereafter shall promptly notify such holders when the registration statement is effective again and available for the issuance or resale of the ~~90-day restricted period referred~~ Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any holder thereof to sell, any Warrant Shares in ~~Section 4(a)(ix~~compliance with applicable federal and state securities laws). (xv) If The Company shall take all action necessary to at ~~any time following~~ all times have authorized and reserved for the ~~distribution~~ purpose of ~~any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result~~ issuance, free of ~~which such Written Testing-the-Waters Communication included or would include an untrue statement~~ preemptive rights, not less than the maximum number of ~~a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light~~ Warrant Shares issuable upon exercise of the ~~circumstances existing at that subsequent time, not misleading,~~ Firm Warrants and the ~~Company will promptly notify~~ Option Warrants (without taking into account any limitations on the ~~Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission~~exercise of the Warrants set forth therein). (xvi) The Company represents and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and will not, make any offer relating to the ~~Shares~~ Securities that would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B III hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping. The Company will satisfy the condition in Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. (xvii) ~~For a period of 2 years after the date of this Agreement, the~~ The Company shall use its commercially reasonable efforts to maintain the ~~registration~~ inclusion of the ~~shares of~~ Shares and the Warrant Shares for trading on the OTCQB. If the Company applies to have the Common Stock listed or quoted on any other trading market, it will then include in such application all of the ~~Nasdaq Capital Market~~Shares and the Warrant Shares, and will take such other action as is necessary to cause all of the Shares and the Warrant Shares to be listed or quoted on such other trading market as promptly as possible. (xviii) As of the later of the Closing Dates, ~~if requested by the Representative,~~ the Company shall ~~retain~~ have retained a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement. (~~xix~~b) Provided that the Firm Shares are sold in accordance with the terms of this Agreement, the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed, to act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company or any Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) (each, a “Subject Transaction”). The Company ~~shall notify the Representative of its intention~~ agrees to ~~pursue a Subject Transaction~~pay, ~~including the material terms thereof, by providing written notice thereof by registered mail~~ or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence reimburse if paid by the Representative, ~~market conditions~~whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, ~~the absence~~ all of ~~a material adverse change to~~ the Company’s ~~business, financial condition~~ costs and ~~prospects, approval~~ expenses incident to the public offering of the ~~Rep~~Securities and the performance of the obligations of the Company under this Agreement, including those relating to: (i) all filing fees relating to the registration of the Securities to be sold in the offering with the Commission; (ii) all actual Corporate Finance Filing Syst

Appears in 1 contract

Sources: Underwriting Agreement (Mabvax Therapeutics Holdings, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the ~~Representative~~ Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act ~~within~~ not later than the ~~applicable~~ Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time ~~period prescribed for filing under the Securities Act and~~ as may be required by the Rules~~. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be~~. (ii) The Company shall promptly advise the ~~Representative~~ Representatives in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary ~~Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules~~Prospectus, or the institution or threatening of any proceeding for that ~~purpose,~~ purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus ~~or any Issuer Free Writing Prospectus~~ unless the Company has furnished the ~~Representative~~ Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the ~~Representative~~ Representatives reasonably ~~objects~~object. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the ~~Representative~~ Representatives as soon as ~~practicable~~ practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company’s fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules~~; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇~~. (viv) The Company shall furnish to the ~~Representative~~ Representatives and counsel for the Underwriters, without charge, ~~three~~ signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, ~~any Issuer Free Writing Prospectus and~~ the Prospectus and any amendments thereof and supplements thereto as the ~~Representative~~ Representatives may reasonably request. If applicable, the copies of the Registration Statement, Preliminary Prospectus, ~~any Issuer Free Writing Prospectus and~~ the Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇▇, except to the extent permitted by Regulation S-T. (~~vii~~vi) The Company shall cooperate with the ~~Representative~~ Representatives and ~~its~~ their counsel in endeavoring to qualify the Shares for offer and sale in connection with the ~~offering~~ Public Offering under the laws of such jurisdictions as the ~~Representative~~ Representatives may ~~reasonably request~~ designate and shall endeavor to maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or ~~other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or~~ to execute a general consent to service of process in any ~~such~~ jurisdiction or to subject itself to taxation as doing business in any ~~such~~ jurisdiction. (~~viii~~vii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered ~~in connection with sales of the Shares~~ under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ixviii) Without the prior written consent of the ~~Representative~~Representatives, for a period of 90 days after the date of this Agreement, the Company shall not issue, sell or register with the ~~Commission~~Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable for or exchangeable ~~for,~~ for equity securities of the Company), except for (aw) the ~~Shares to be sold hereunder; (b) any shares of capital stock~~ issuance of the ~~Company issued upon the exercise of options granted under the Company’s stock incentive plan described as outstanding in~~ Shares pursuant to the Registration Statement, (x) the ~~General Disclosure Package,~~ issuance of shares or grant of options or other securities pursuant to the ~~Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company~~ Company’s existing stock ~~incentive~~ option plan or bonus plan as described in the Registration ~~Statement, the General Disclosure Package, the Statutory Prospectus~~ Statement and the Prospectus; , (dy) the ~~filing by~~ issuance of shares of Common Stock or warrants exercisable for shares of Common Stock to consultants for services provided or to be provided to the Company in an aggregate amount not to exceed 1% of ~~any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in~~ the ~~Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e)~~ shares of ~~capital stock~~ Common Stock of the Company immediately outstanding following consummation of the transactions contemplated herein and (z) the issuance of shares of Common Stock or other securities ~~of the Company issued~~ in connection with ~~a transaction with~~ future collaborations, strategic partnerships or joint ventures in an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of aggregate amount not ~~less than a majority or controlling portion of the equity of another entity, provided that, the aggregate number of securities of the Company issued pursuant~~ to ~~this subsection (e) shall not~~ exceed 5% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement. In the event that during this period, (I) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such 180 day period or (II) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not, without the prior written consent of the Representative, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock ~~(or any securities convertible into, or exercisable or exchangeable for, any shares~~ of ~~Common Stock) owned by such person. Notwithstanding the foregoing,~~ the Company ~~represents and warrants~~ immediately outstanding following consummation of the transactions contemplated herein, provided that ~~each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and~~ the Company shall ~~enforce such rights and impose stop-transfer restrictions on~~ not file any ~~such sale~~ registration statement with the Commission relating to any securities issued pursuant to clause (y) or ~~other transfer or disposition~~ (z) of this paragraph from the date of such ~~shares until~~ issuance through the ~~end~~ remainder of the ~~applicable~~ 90-day restricted period. (ix) The Company will use its reasonable best efforts to list for trading the Shares on The NASDAQ Capital Market. (x) If the Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of the offering of the Shares, the Company shall make all filings required under applicable securities laws and by Nasdaq (including any required registration under the Exchange Act). (xii) Prior to the ~~latest of the~~ Closing ~~Dates~~Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the ~~Representative~~ Representatives (not to be unreasonably delayed, conditioned or withheld) unless in the judgment of the Company and its counsel, and after notification to the ~~Representative~~Representatives, such press release or communication is in the ordinary course of business or required by law. (~~xiii~~xi) The Company will apply the net proceeds from the offering of the Shares substantially in the manner set forth under “Use of Proceeds” in the Prospectus. (~~xiv~~xii) The Company will promptly notify the ~~Representative~~ Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the 90-day restricted period referred to in Section ~~4(a)(ix)~~4(a)(viii) hereof. (xvxiii) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the ~~Representative~~ Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (~~xvi~~b) The Company agrees to pay, or reimburse if paid by the Representatives, unless otherwise expressly indicated, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all of the Company’s costs and expenses relating to: (i) the preparation, printing, reproduction filing and distribution of the Registration Statement including all exhibits thereto, each Preliminary Prospectus, the Prospectus, all amendments and supplements thereto, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 4(a)(vi), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of FINRA in connection with its review of the terms of the Public Offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review (in an amount not to exceed $20,000 in the aggregate); (vi) inclusion of the Shares for listing on The NASDAQ Capital Market; and (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters. (c) The Company acknowledges and agrees that each of the Underwriters has acted and is acting solely in the capacity of a principal in an arm’s length transaction between the Company, on the one hand, and the Underwriters, on the other hand, with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor, agent or fiduciary to the Company or any other person. Additionally, the Company acknowledges and agrees that the Underwriters have not and will not advise the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or any other person with respect thereto, whether arising prior to or after the date hereof. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions have been and will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary duty to the Company or any other person in connection with any such transaction or the process leading thereto. (d) The Company represents and agrees that, unless it obtains the prior consent of the ~~Representative~~Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the ~~Representative~~Representatives, it has not made and will ~~not,~~ not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule ~~405 of~~ 405, required to be filed with the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B heretoCommission. The Company represents that it is has ~~treated~~ satisfied and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping. The Company will satisfy the ~~condition~~ conditions set forth in Rule 433 of the Rules ~~and Regulations~~ to avoid a requirement to file with the Commission any ~~electronic road show~~Road Show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq Capital Market. (xviii) As of the later of the Closing Dates, if requested by the Representative, the Company shall retain a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement. (xix) Provided that the Firm Shares are sold in accordance with the terms of this Agreement, the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed, to act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company or any Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) (each, a “Subject Transaction”). The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof, by providing written notice thereof by registered mail or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Rep

Appears in 1 contract

Sources: Underwriting Agreement (Pieris Pharmaceuticals, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act ~~within~~ not later than the ~~applicable~~ Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time ~~period prescribed for filing under the Securities Act and~~ as may be required by the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any ~~Preliminary Prospectus~~ preliminary prospectus or any ~~“free writing prospectus”, as defined in Rule 405 of the Rules~~Issuer Free Writing Prospectus, or the institution or threatening of any proceeding for that ~~purpose,~~ purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably ~~objects~~object. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the ~~Representative~~ Representative, as soon as ~~practicable~~ practicable, an ~~earnings~~ earning statement (which need not be audited) of the Company, covering such ~~12-~~12 month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules~~; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇~~. (vi) The Company shall furnish to the Representative and counsel for the Underwriters, without charge, ~~three~~ signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request. If applicable, the copies of the Registration Statement, Preliminary Prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the Representative and ~~its~~ their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representative may ~~reasonably request~~ designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or ~~other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or~~ to execute a general consent to service of process in any ~~such~~ jurisdiction or to subject itself to taxation as doing business in any ~~such~~ jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered ~~in connection with sales of the Shares~~ under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of the Representative, for a period of 90 360 days after the date of this Agreement, the Company and each of its individual directors and executive officers shall not issue, sell or register with the ~~Commission~~Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable for or exchangeable ~~for,~~ for equity securities of the Company), except for ~~(a)~~ the issuance of the Shares pursuant to ~~be sold hereunder; (b) any~~ the Registration Statement and the issuance of shares ~~of capital stock of the Company issued upon the exercise of options granted under~~ pursuant to the Company’s existing stock ~~incentive~~ option plan ~~described~~ or bonus plan as ~~outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan~~ described in the Registration ~~Statement, the General Disclosure Package, the Statutory Prospectus~~ Statement and the Prospectus; (d) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided that, the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 5% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement. In the event that during this period, (IA) any shares are issued pursuant to the Company’s existing stock ~~incentive~~ option plan or bonus plan that are exercisable during such ~~180~~ 360 day period or (IIB) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such ~~180 day~~ 360 period, the Company shall obtain the written agreement of such ~~grantee,~~ grantee or purchaser or holder of such registered securities that, for a period of 90 360 days after the date of this Agreement, such person will not, without the prior written consent of the Representative, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable for, or exchangeable ~~for,~~ for any shares of Common Stock) owned by such person. Notwithstanding the foregoing, (i) the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar ~~lock-up~~ lockup restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable ~~period.~~ period and (ii) if (x) If during the ~~Representative agrees to~~ last 17 days of the 360 day period described in this Section 4(a)(9) the Company issues an earnings release or ~~waive the restrictions set forth in any Lock-Up Agreement for an officer~~ material news or ~~director of~~ a material event relating to the Company ~~and provide~~ occurs; or (y) prior to the ~~Company with notice~~ expiration of ~~the impending release or waiver at least three business days before the effective date of the release or waiver~~such 360 day period, the Company ~~agrees~~ announces that it will release earnings results during the 16 day period beginning on the last day of the 360 day period; the restrictions imposed during this Section 4(a)(9) shall continue to ~~announce~~ apply until the ~~impending~~ expiration of the 18-day period beginning on the issuance of the earnings release or ~~waiver by a press release substantially in~~ the ~~form of Exhibit B attached hereto through a major news service at least two business days before the effective date~~ occurrence of the ~~release~~ material news or ~~waiver~~material event; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. ~~(xi~~x) On or before completion of ~~the offering of the Shares~~this offering, the Company shall make all filings required under applicable securities laws and by the Nasdaq Global Market (including any required registration under the Exchange Act). ~~(xii~~xi) Prior to the ~~latest of the~~ Closing ~~Dates~~Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the Representative unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. ~~(xiii~~xii) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “Use of Proceeds” in the Prospectus. (~~xiv~~b) ~~The Company will promptly notify~~ Concurrently with or as soon as practicable after the ~~Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion~~ filing of the ~~distribution of~~ Registration Statement with the Shares within the meaning of the Securities Act and (b) completion of the 90-day restricted period referred to in Section 4(a)(ix). (xv) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleadingCommission, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (xvi) The Company represents and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and will not, make ~~any offer relating~~ all necessary state “blue sky” securities law filings with respect to the Shares ~~that would constitute a “free writing prospectus” as defined~~ to be sold in ~~Rule 405 of~~ the ~~Rules and Regulations~~ offering (~~each, a “Permitted Free Writing Prospectus”~~including the Option Shares)~~; provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B hereto~~. The Company ~~represents~~ and ▇▇▇▇▇▇ will cooperate in obtaining the necessary approvals and qualifications in such states as ▇▇▇▇▇▇ ▇▇▇▇▇ necessary and/or desirable. It is agreed that ~~it has treated and agrees that it~~ ▇▇▇▇▇▇’▇ counsel will ~~treat each Permitted Free Writing Prospectus~~ act as ~~an Issuer Free Writing Prospectus and comply~~ the Company’s “blue sky” counsel with respect to the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keepingoffering. The Company will ~~satisfy~~ be responsible for and pay all expenses relating to the ~~condition in Rule 433 of the Rules~~ offering, including, without limitation, (a) all filing fees and ~~Regulations~~ communication expenses relating to avoid a requirement to file with the Commission any electronic road show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the ~~shares~~ Shares to be sold in the offering (including the Option Shares) with the Commission; (b) all COBRA Desk filing fees associated with the review of ~~Common Stock~~ the offering by FINRA; all fees and expenses relating to the listing of such Shares on the Nasdaq Capital Market. , the Nasdaq Global Market or the NYSE Amex and on such other stock exchanges as the Company and ▇▇▇▇▇▇ together determine; (~~xviii~~c) As all fees, expenses and disbursements relating to background checks of the ~~later~~ Company’s officers and directors in an amount not to exceed $5,000 per individual; (d) all fees, expenses and disbursements relating to the registration or qualification of such Shares under the ~~Closing Dates~~“blue sky” securities laws of such states and other jurisdictions as ▇▇▇▇▇▇ may reasonably designate (including, without limitation, all filing and registration fees, and the reasonable fees and disbursements of “blue sky” counsel, it being agreed that such fees and expenses will be limited to: (i) if ~~requested by~~ the ~~Representative~~offering is commenced on either the Nasdaq Global Market or the NYSE Amex, the Company ~~shall retain~~ will make a payment of $5,000 to such counsel on the Closing Date or (ii) if the offering is commenced on the Nasdaq Capital Market or on the Over the Counter Bulletin Board, the Company will make a payment of $15,000 to such counsel upon the commencement of “blue sky” work by such counsel and an additional $5,000 on the Closing Date; (e) all fees, expenses and disbursements relating to the registration, qualification or exemption of such Shares under the securities laws of such foreign jurisdictions as ▇▇▇▇▇▇ may reasonably designate; (f) the costs of all mailing and printing of the underwriting documents (including, without limitation, this Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among Underwriters, Selected Dealer’s Agreement, Underwriters’ Questionnaire and Powers of Attorney), Registration Statements, Prospectuses and all amendments, supplements and exhibits thereto and as many Preliminary Prospectuses and Prospectuses as ▇▇▇▇▇▇ may reasonably deem necessary; (g) the costs and expenses of a financial public relations firm ~~reasonably acceptable to the Representative and the Company, which firm shall be~~ experienced in assisting issuers in public offerings of securities and in their relations with their security holders; (h) the costs of preparing, printing and ~~shall retain such firm~~ delivering certificates representing the Shares; (i) fees and expenses of the transfer agent for the Shares; (j) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to ▇▇▇▇▇▇; (k) the costs associated with post-Closing Date advertising the offering in the national editions of the Wall Street Journal and New York Times; (l) the costs associated with bound volumes of the public offering materials as well as commemorative mementos and Lucite tombstones, each of which the Company or ~~another firm reasonably acceptable to the Representative for~~ its designee will provide within a ~~period of not less than two (2) years~~ reasonable time after the ~~date~~ Closing Date in such quantities as ▇▇▇▇▇▇ may reasonably request; (m) the fees and expenses of ~~this Agreement~~the Company’s accountants; (n) the fees and expenses of the Company’s legal counsel and other agents and representatives; (o) payment in the amount of (i) U.S. $125,000 to ▇▇▇▇▇ Day and (ii) RMB 200,000 to Grandall, each to be applied towards the total legal fees and expenses of ▇▇▇▇▇ Day and Grandall; (p) the $16,000 cost associated with the use of i-Deal’s book building, prospectus tracking and compliance software for the offering and (q) up to $10,000 of ▇▇▇▇▇▇’▇ actual accountable “road show” expenses for the offering. (~~xix~~c) ~~Provided~~ The Company acknowledges and agrees that each of the ~~Firm~~ Underwriters has acted and is acting solely in the capacity of a principal in an arm’s length transaction between the Company, on the one hand, and the Underwriters, on the other hand, with respect to the offering of Shares ~~are sold~~ contemplated hereby (including in ~~accordance~~ connection with determining the terms of ~~this Agreement~~the offering) and not as a financial advisor, ~~the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed,~~ agent or fiduciary to ~~act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event~~ the Company or any ~~Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered~~other person. Additionally, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company ~~would be considered an acquiring party~~acknowledges and agrees that the Underwriters have not and will not advise the Company or any other person as to any legal, ~~a selling party~~ tax, investment, accounting or ~~neither~~ regulatory matters in ~~such transaction) (each, a “Subject Transaction”)~~any jurisdiction. The Company has consulted with its own advisors concerning such matters and shall ~~notify~~ be responsible for making its own independent investigation and appraisal of the ~~Representative of its intention to pursue a Subject Transaction~~transactions contemplated hereby, ~~including~~ and the material terms thereof, by providing written notice thereof by registered mail or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative Underwriters shall have no ~~further claim~~ responsibility or ~~right~~ liability to the Company or any other person with respect thereto, whether arising prior to or after the date hereof. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions have been and will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary duty to the ~~Subject Transaction~~company or any other person in connection with any such Transaction or the process leading thereto. (d) The Company represents and acknowledges that it is not eligible to use an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission, and that it will not issue an “issuer free writing prospectus,” as defined in Rule 433, or a “free writing prospectus,” as defined in Rule 405. The ~~Representative may elect, in its sole~~ Company represents that is has satisfied and ~~absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided~~ agrees that ~~any such election by~~ it will satisfy the ~~Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and~~ conditions ~~of any such engagements shall be~~ set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval Rule 433 of the ~~Rep~~Rules to avoid a requirement to file with the Commission any Road Show.

Appears in 1 contract

Sources: Underwriting Agreement (China Power Technology, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for filing under the Securities Act and the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that purpose, and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the Representative as soon as practicable an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇. (vi) The Company shall furnish to the Representative and counsel for the Underwriters, without charge, three signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representative may reasonably request. If applicable, the copies of the Registration Statement, Preliminary Prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the Representative and its counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the Representative may reasonably request and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or to execute a general consent to service of process in any such jurisdiction or to subject itself to taxation as doing business in any such jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered in connection with sales of the Shares under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of the Representative, for a period of 90 180 days after the date of this Agreement, the Company shall not issue, sell or register with the Commission, or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable or exchangeable for, equity securities of the Company), except for (a) the Shares to be sold hereunder; (b) any shares of capital stock of the Company issued upon the exercise of options granted under the Company’s stock incentive plan described as outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (d) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided that, the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 510% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement; (f) any warrants, and the shares of capital issuable upon the exercise thereof, issued to any lender in connection with venture debt financing described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus. In the event that during this period, (I) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such 180 day period or (II) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 180 days after the date of this Agreement, such person will not, without the prior written consent of the Representative, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock) owned by such person. Notwithstanding the foregoing, the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period. (x) If the Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of the offering of the Shares, the Company shall make all filings required under applicable securities laws and by Nasdaq (including any required registration under the Exchange Act). (xii) Prior to the latest of the Closing Dates, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of ~~any of them~~the Company, or the offering of the Shares without the prior written consent of the Representative unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. (xiii) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “Use of Proceeds” in the Prospectus. (xiv) The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the 90-day restricted period referred to in Section 4(a)(ix). (xv) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (xvi) The Company represents and agrees that, unless it obtains the prior consent of the Representative, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and will not, make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B hereto. The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping. The Company will satisfy the condition in Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq Capital Market. (xviii) As of the later of the Closing Dates, if requested by the Representative, the Company shall retain a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement[Intentionally Omitted]. (xix) Provided that the Firm Shares resulting in gross proceeds to the Company of at least $7,500,000 are sold in accordance with the terms of this ~~Agreement~~Agreement not later than June 23, 2016, the Representative shall have ~~an irrevocable~~ a right of first ~~refusal~~ offer (the “Right of First ~~Refusal~~Offer”), for a period of ~~twelve~~ one (121) ~~months~~ year after the date the Offering is completed, to act as (A) lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company ~~or any Subsidiary~~ retains or otherwise uses (or seeks to retain or use) the services of an investment bank ~~or similar financial advisor~~ to pursue a registered, underwritten public offering of securities (in addition to the Offering), ) or a private placement of ~~securities, a merger, acquisition of another company~~ equity or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) convertible debt securities (each, a “Subject Transaction”)) if the aggregate gross proceeds for such Subject Transaction is expected to be less than or equal to $25,000,000 or (B) a co-manager, lead manager, placement agent or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company retains or otherwise uses (or seeks to retain or use) the services of an investment bank to pursue a Subject Transaction if the aggregate gross proceeds for such Subject Transaction is expected to be in excess of $25,000,000. The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the ~~material terms thereof~~type of security to be offered, the desired aggregate gross proceeds and whether the offering will be a private placement or a registered offering, by providing written notice thereof (a “Subject Transaction Notice”) by e-mail, registered mail or overnight courier service addressed to the ~~Representative~~Representative delivered in accordance with Section 9 of this Agreement. If the Representative fails to exercise its Right of First ~~Refusal~~ Offer with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction, including, without limitation, in the event that there are subsequent modifications to the proposed terms of such Subject Transaction set forth in the applicable Subject Transaction Notice. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First ~~Refusal~~ Offer with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Rep

Appears in 1 contract

Sources: Underwriting Agreement (Phaserx, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the ~~Representative~~ Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act ~~within~~ not later than the ~~applicable~~ Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time ~~period prescribed for filing under the Securities Act and~~ as may be required by the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under ~~Rules~~ Rule 433(d~~) or 163(b)(2~~)~~, as the case may be~~. (ii) The Company shall promptly advise the ~~Representative~~ Representatives in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any ~~Preliminary Prospectus~~ preliminary prospectus or any “"free writing prospectus”", as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that ~~purpose,~~ purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the ~~Representative~~ Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the ~~Representative~~ Representatives reasonably ~~objects~~object. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities ~~Act,~~ Act and any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the ~~Representative~~ Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the ~~Representative~~ Representatives as soon as ~~practicable~~ practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules~~; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇~~. (vi) The Company shall furnish to the ~~Representative~~ Representatives and counsel for the Underwriters, without charge, ~~three~~ signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the ~~Representative~~ Representatives may reasonably request. If applicable, the copies of the Registration Statement, ~~Preliminary Prospectus~~preliminary prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the ~~Representative~~ Representatives and ~~its~~ their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the ~~Representative~~ Representatives may ~~reasonably request~~ designate and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or ~~other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or~~ to execute a general consent to service of process in any ~~such~~ jurisdiction or to subject itself to taxation as doing business in any ~~such~~ jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered ~~in connection with sales of the Shares~~ under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of ~~the Representative~~CIBC World Markets Corp., for a period of 90 180 days after the date of this Agreement, the Company shall not issue, sell or register with the ~~Commission~~Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable for or exchangeable ~~for,~~ for equity securities of the Company), except for ~~(a)~~ the issuance of the Shares pursuant to ~~be sold hereunder; (b) any~~ the Registration Statement and the issuance of shares ~~of capital stock of the Company issued upon the exercise of options granted under~~ pursuant to the Company’s 's existing stock ~~incentive~~ option plan ~~described~~ or bonus plan as ~~outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan~~ described in the Registration ~~Statement, the General Disclosure Package, the Statutory Prospectus~~ Statement and the Prospectus; (d) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided that, the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 5% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement. In the event that during this period, (IA) any ~~shares~~ securities are issued pursuant to the Company’s 's existing stock ~~incentive~~ option plan or bonus plan that are exercisable during such 180 day period or (IIB) any registration is effected on Form S-8 or on any successor form relating to ~~shares~~ securities that are exercisable during such 180 ~~day~~ period, the Company shall obtain the written agreement of such ~~grantee,~~ grantee or purchaser or holder of such registered securities that, for a period of 90 180 days after the date of this Agreement, such person will not, without the prior written consent of ~~the Representative~~CIBC World Markets Corp., offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable for, or exchangeable ~~for,~~ for any shares of Common Stock) owned by such person. Notwithstanding the foregoing, (i) the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar ~~lock-up~~ lockup restrictions as set forth on ~~Exhibit~~ EXHIBIT A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period and (ii) if (x) during the last 17 days of the 180 day period described in this Section 4(a)(ix) the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of such 180 day period, the Company announces that it will release earnings results or material news or a material event during the 16 day period beginning on the last day of the 180 day period; the restrictions imposed during this Section 4(a)(ix) shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act and the Company's securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. (x) If the Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of ~~the offering of the Shares~~this offering, the Company shall make all filings required under applicable securities laws and by ~~Nasdaq~~ the NASDAQ National Market (including any required registration under the Exchange Act). (~~xii~~xi) Prior to the ~~latest of the~~ Closing ~~Dates~~Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of ~~any of them~~the Company, or the offering of the Shares without the prior ~~written~~ consent of the ~~Representative~~ Representatives unless in the judgment of the Company and its counsel, and after notification to the ~~Representative~~Representatives, such press release or communication is required by law. (~~xiii~~xii) The Company will apply the net proceeds from the offering of the Shares substantially in the manner set forth under “"Use of Proceeds” " in the Prospectus. (~~xiv~~b) The Company ~~will promptly notify~~ agrees to pay, or reimburse if paid by the ~~Representative if~~ Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company ~~ceases to be an Emerging Growth Company at any time prior to~~ under this Agreement including those relating to: (i) the ~~later of (a) completion of the~~ preparation, printing, reproduction, filing and distribution of the Registration Statement including all exhibits thereto, each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, all amendments and supplements thereto, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares ~~within~~ to the ~~meaning~~ Underwriters; (iii) the registration or qualification of the ~~Securities Act~~ Shares for offer and ~~(b) completion~~ sale under the securities or Blue Sky laws of the ~~90-day restricted period~~ various jurisdictions referred to in Section ~~4(a)(ix~~4(a)(vii), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Prospectus, any Issuer Free Writing Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of the NASD in connection with its review of the terms of the public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for quotation on the NASDAQ National Market; and (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters. Subject to the provisions of Section 7, the Underwriters agree to pay, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriters under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwriters. (xvc) ~~If at any time following~~ The Company acknowledges and agrees that each of the ~~distribution~~ Underwriters has acted and is acting solely in the capacity of ~~any Written Testing-the-Waters Communication there occurred or occurs~~ a principal in an ~~event or development~~ arm's length transaction between the Company, on the one hand, and the Underwriters, on the other hand, with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a ~~result of which such Written Testing-the-Waters Communication included~~ financial advisor, agent or ~~would include an untrue statement of a material fact~~ fiduciary to the Company or ~~omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading~~any other person. Additionally, the Company ~~will promptly notify~~ acknowledges and agrees that the ~~Representative~~ Underwriters have not and will ~~promptly amend~~ not advise the Company or ~~supplement~~any other person as to any legal, at tax, investment, accounting or regulatory matters in any jurisdiction. The Company has consulted with its own ~~expense~~advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or any other person with respect thereto, whether arising prior to or after the date of hereof, provided, that the foregoing sentence is not intended to, and does not, in any manner limit the application of Section 5 below. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such ~~Written Testing-the-Waters Communication~~ transactions have been and will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary duty to ~~eliminate~~ the Company or ~~correct~~ any other person in connection with any such ~~untrue statement~~ transaction or ~~omission~~the process leading thereto. (~~xvi~~d) The Company represents and agrees that, unless it obtains the prior consent of ~~the Representative~~CIBC World Markets Corp., and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and ~~the Representative~~CIBC World Markets Corp., it has not made and will ~~not,~~ not make any offer relating to the Shares that would constitute ~~a “~~an "issuer free writing prospectus” ," as defined in Rule ~~405 of~~ 433, or that would otherwise constitute a "free writing prospectus," as defined in Rule 405, required to be filed with the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B heretoCommission. The Company ~~represents that it~~ has ~~treated~~ complied and ~~agrees that it~~ will ~~treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and~~ comply with the requirements of ~~Rules 164 and~~ Rule 433 of under the ~~Rules and Regulations~~ Act applicable to any Issuer Free Writing Prospectus, including ~~the requirements relating to~~ timely filing with the ~~Commission~~Commission where required, legending and record keeping. The Company represents that is has satisfied and agrees that it will satisfy the ~~condition~~ conditions in Rule 433 of the Rules ~~and Regulations~~ to avoid a requirement to file with the Commission any ~~electronic road show~~Road Show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq Capital Market. (xviii) As of the later of the Closing Dates, if requested by the Representative, the Company shall retain a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement. (xix) Provided that the Firm Shares are sold in accordance with the terms of this Agreement, the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed, to act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company or any Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) (each, a “Subject Transaction”). The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof, by providing written notice thereof by registered mail or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Rep

Appears in 1 contract

Sources: Underwriting Agreement (Imarx Therapeutics Inc)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the ~~Representative~~ Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for filing under the Securities Act and the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall promptly advise the ~~Representative~~ Representatives in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that purpose, and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any Issuer Free Writing Prospectus unless the Company has furnished the ~~Representative~~ Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the ~~Representative~~ Representatives reasonably ~~objects~~object. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the ~~Representative~~ Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the ~~Representative~~ Representatives as soon as practicable an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules; provided that the Company will be deemed to have furnished such statements to its security holders and the ~~Representative~~ Representatives to the extent they are filed on E▇▇▇▇▇. (vi) The Company shall furnish to the ~~Representative~~ Representatives and counsel for the Underwriters, without charge, three signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the ~~Representative~~ Representatives may reasonably request. If applicable, the copies of the Registration Statement, Preliminary Prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the ~~Representative~~ Representatives and ~~its~~ their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the ~~Representative~~ Representatives may reasonably request and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or to execute a general consent to service of process in any such jurisdiction or to subject itself to taxation as doing business in any such jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered in connection with sales of the Shares under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of the ~~Representative~~Representatives, for a period of 90 180 days after the date of this Agreement, the Company shall not issue, sell or register with the Commission, or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable or exchangeable for, equity securities of the Company), except for (a) the Shares to be sold hereunder; (b) any shares of capital stock of the Company issued upon the exercise of options granted under the Company’s stock incentive plan described as outstanding in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (d) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided that, other than with respect to shares issuable to Ligand Pharmaceuticals Incorporated and its affiliates (collectively, “Ligand”) and other holders of outstanding convertible notes of the Company, in each case as described in the Registration Statement, the General Disclosure Package, the Statutory Prospectus and the Prospectus, the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 5% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the ~~Representative~~ Representatives an agreement substantially in the form of the Lock-Up Agreement. In the event that during this period, (I) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such 180 day period or (II) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 180 days after the date of this Agreement, such person will not, without the prior written consent of the ~~Representative~~Representatives, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock) owned by such person. Notwithstanding the foregoing, the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period. (x) If the ~~Representative agrees~~ Representatives agree to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of the offering of the Shares, the Company shall make all filings required under applicable securities laws and by Nasdaq (including any required registration under the Exchange Act). (xii) Prior to the ~~latest of the~~ Closing ~~Dates~~Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the ~~Representative~~ Representatives unless in the judgment of the Company and its counsel, and after notification to the ~~Representative~~Representatives, such press release or communication is required by law. (xiii) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “Use of Proceeds” in the Prospectus. (xiv) The Company will promptly notify the ~~Representative~~ Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the 90180-day restricted period referred to in Section 4(a)(ix). (xv) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the ~~Representative~~ Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (~~xvi~~b) The Company ~~represents and~~ agrees ~~that~~to pay, ~~unless it obtains~~ or reimburse if paid by the ~~prior consent~~ Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all of the ~~Representative~~Company’s costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, reproduction filing and distribution of the Registration Statement including all exhibits thereto, each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, all amendments and supplements thereto, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 4(a)(vii), including the reasonable, actual and documented fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each ~~Underwriter represents~~ Preliminary Prospectus, the Prospectus and ~~agrees that~~all amendments or supplements to the Prospectus, ~~unless it obtains~~ any Issuer Free Writing Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of FINRA in connection with its review of the terms of the public offering and reasonable, actual and documented fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for listing on the Nasdaq Global Market; (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters; and (viii) all reasonable, actual and documented out-of-pocket costs and expenses incident to the offering and the performance of the obligations of the Representatives under this Agreement (including, without limitation, the reasonable, actual and documented fees and expenses of counsel to the Underwriters); provided, however, that such costs and expenses (including the fees and expenses of counsel to the Underwriters to be reimbursed by the Company pursuant to this Section 4(b) shall not exceed (without the prior consent of the Company ~~and~~ which shall not be unreasonably withheld) (A) $150,000 in the ~~Representative, it has~~ aggregate if the offering contemplated hereby is consummated or (B) $75,000 in the aggregate if the offering contemplated hereby is not ~~made and will not, make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations~~ consummated. (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B hereto. c) The Company ~~represents that it has treated~~ acknowledges and agrees that ~~it will treat~~ each ~~Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and comply with the requirements of Rules 164 and 433~~ of the ~~Rules~~ Underwriters has acted and ~~Regulations applicable to any Issuer Free Writing Prospectus, including~~ is acting solely in the ~~requirements relating to timely filing with the Commission, legending and record keeping. The Company will satisfy the condition~~ capacity of a principal in Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission any electronic road show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq Capital Market. (xviii) As of the later of the Closing Dates, if requested by the Representative, the Company shall retain a financial public relations firm reasonably acceptable to the Representative and an arm’s length transaction between the Company, ~~which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders~~on the one hand, and ~~shall retain such firm or another firm reasonably acceptable~~ the Underwriters, on the other hand, with respect to the ~~Representative for a period~~ offering of ~~not less than two~~ Shares contemplated hereby (~~2) years after the date of this Agreement. (xix) Provided that the Firm Shares are sold~~ including in ~~accordance~~ connection with determining the terms of ~~this Agreement~~the offering) and not as a financial advisor, ~~the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed,~~ agent or fiduciary to ~~act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event~~ the Company or any ~~Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered~~other person. Additionally, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company ~~would be considered an acquiring party~~acknowledges and agrees that the Underwriters have not and will not advise the Company or any other person as to any legal, ~~a selling party~~ tax, investment, accounting or ~~neither~~ regulatory matters in ~~such transaction) (each, a “Subject Transaction”)~~any jurisdiction. The Company has consulted with its own advisors concerning such matters and shall ~~notify~~ be responsible for making its own independent investigation and appraisal of the ~~Representative of its intention to pursue a Subject Transaction~~transactions contemplated hereby, ~~including~~ and the material terms thereof, by providing written notice thereof by registered mail or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative Underwriters shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Represponsibility

Appears in 1 contract

Sources: Underwriting Agreement (Viking Therapeutics, Inc.)

Covenants and other Agreements of the Company and the Underwriters. (a) The Company covenants and agrees as follows: (i) The Company will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form approved by the ~~Representative~~ Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act within the ~~applicable time~~ period prescribed for filing under the Securities Act and the Rules. The Company will file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under Rules 433(d) or 163(b)(2), as the case may be. (ii) The Company shall promptly advise the ~~Representative~~ Representatives in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the Registration Statement or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or any “free writing prospectus”, as defined in Rule 405 of the Rules, or the institution or threatening of any proceeding for that ~~purpose,~~ purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or any document incorporated by reference in the Registration Statement or any Issuer Free Writing Prospectus unless the Company has furnished the ~~Representative~~ Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the ~~Representative~~ Representatives reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (iii) If, at any time when a prospectus relating to the Shares (or, in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state 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 or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 4(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance. (iv) If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement or would include an untrue statement of a material fact or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances prevailing at the subsequent time, not misleading, the Company will promptly notify the ~~Representative~~ Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (v) The Company shall make generally available to its security holders and to the ~~Representative~~ Representatives as soon as ~~practicable~~ practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules~~; provided that the Company will be deemed to have furnished such statements to its security holders and the Representative to the extent they are filed on E▇▇▇▇~~. (vi) The Company shall furnish to the ~~Representative~~ Representatives and counsel for the Underwriters, without charge, ~~three~~ signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments thereof and supplements thereto as the ~~Representative~~ Representatives may reasonably request. If applicable, the copies of the Registration Statement, ~~Preliminary Prospectus~~preliminary prospectus, any Issuer Free Writing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to E▇▇▇▇, except to the extent permitted by Regulation S-T. (vii) The Company shall cooperate with the ~~Representative~~ Representatives and its counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the laws of such jurisdictions as the ~~Representative~~ Representatives may reasonably request and shall maintain such qualifications in effect so long as required for the distribution of the Shares; provided, however, that the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or ~~other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, or~~ to execute a general consent to service of process in any ~~such~~ jurisdiction or to subject itself to taxation as doing business in any ~~such~~ jurisdiction. (viii) The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules) is required to be delivered ~~in connection with sales of the Shares~~ under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated thereunder. (ix) Without the prior written consent of ~~the Representative~~Representatives, for a period of 90 days after the date of this Agreement, the Company shall not issue, sell or register with the ~~Commission~~Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, or exercisable for or exchangeable ~~for,~~ for equity securities of the Company), except for (a) the ~~Shares to be sold hereunder; (b) any shares of capital stock~~ issuance of the ~~Company issued upon the exercise of options granted under the Company’s stock incentive plan described as outstanding in~~ Shares pursuant to the Registration Statement, (b) the ~~General Disclosure Package, the Statutory Prospectus and the Prospectus; (c) any options and other awards granted under a Company stock incentive plan~~ issuance of shares upon exercise of outstanding warrants described in the Registration ~~Statement,~~ Statement and the ~~General Disclosure Package, the Statutory~~ Prospectus and ~~the Prospectus;~~ (dc) the ~~filing by~~ issuance of shares pursuant to the ~~Company of any registration statement on Form S-8 or a successor form thereto relating to a Company stock incentive plan~~ Company's existing equity plans as described in the Registration ~~Statement, the General Disclosure Package, the Statutory Prospectus~~ Statement and the Prospectus; (e) shares of capital stock of the Company or other securities of the Company issued in connection with a transaction with an unaffiliated third party that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements) or any acquisition of assets or acquisition of not less than a majority or controlling portion of the equity of another entity, provided that, the aggregate number of securities of the Company issued pursuant to this subsection (e) shall not exceed 5% of the Company’s outstanding common stock as of the closing of the offering of the Shares; and provided further that as a condition to any transfer pursuant to this subsection (e), any recipient of such shares of capital stock shall first execute and deliver to the Representative an agreement substantially in the form of the Lock-Up Agreement. In the event that during this period, (I) any shares are issued pursuant to the Company’s stock incentive plan that are exercisable during such 180 day period or (II) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 day period, the Company shall obtain the written agreement of such grantee, purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not, without the prior written consent of the Representative, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock) owned by such person. Notwithstanding the foregoing, the Company represents and warrants that each such grantee or purchaser or holder of such registered securities shall be subject to similar lock-up restrictions as set forth on Exhibit A attached hereto and the Company shall enforce such rights and impose stop-transfer restrictions on any such sale or other transfer or disposition of such shares until the end of the applicable period. (x) If the Representative agrees to release or waive the restrictions set forth in any Lock-Up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B attached hereto through a major news service at least two business days before the effective date of the release or waiver. (xi) On or before completion of ~~the offering of the Shares~~this offering, the Company shall make all filings required under applicable securities laws and by ~~Nasdaq (including any required registration under the Exchange Act)~~Nasdaq. (~~xii~~xi) Prior to the ~~latest of the~~ Closing ~~Dates~~Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the ~~Representative~~ Representatives unless in the judgment of the Company and its counsel, and after notification to the ~~Representative~~Representatives , such press release or communication is required by law. (~~xiii~~xii) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “"Use of Proceeds” " in the Prospectus. (~~xiv~~xiii) The Company will promptly notify the ~~Representative~~ Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the 90-day restricted period referred to in Section 4(a)(ix)) hereof. (xvxiv) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the ~~Representative~~ Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. (~~xvi~~b) The Company agrees to pay, or reimburse if paid by the Representatives , whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all of the Company’s costs and expenses incident to the public offering of the Shares and the performance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, reproduction filing and distribution of the Registration Statement including all exhibits thereto, each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, all amendments and supplements thereto and any document incorporated by reference therein, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the various jurisdictions referred to in Section 4(a)(vii), including the reasonable, actual and documented fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Prospectus, any Issuer Free Writing Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the filing fees of FINRA in connection with its review of the terms of the public offering and reasonable, actual and documented fees and disbursements of counsel for the Underwriters in connection with such review; (vi) inclusion of the Shares for listing on Nasdaq; (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters; and (viii) all reasonable, actual and documented out-of-pocket costs and expenses incident to the offering and the performance of the obligations of the Representatives under this Agreement (including, without limitation, the reasonable, actual and documented fees and expenses of counsel to the Underwriters); provided, however, that such costs and expenses to be reimbursed by the Company to the Underwriters pursuant to this Section 4(b) shall not exceed $125,000 in the aggregate. (c) The Company acknowledges and agrees that each of the Underwriters has acted and is acting solely in the capacity of a principal in an arm’s length transaction between the Company, on the one hand, and the Underwriters, on the other hand, with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor, agent or fiduciary to the Company or any other person. Additionally, the Company acknowledges and agrees that the Underwriters have not and will not advise the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or any other person with respect thereto, whether arising prior to or after the date hereof. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions have been and will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary duty to the Company or any other person in connection with any such transaction or the process leading thereto. (d) The Company represents and agrees that, unless it obtains the prior consent of the ~~Representative~~Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the ~~Representative~~Representatives, it has not made and will ~~not,~~ not make any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule ~~405 of~~ 405, required to be filed with the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule B heretoCommission. The Company ~~represents that it~~ has ~~treated~~ complied and ~~agrees that it~~ will ~~treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and~~ comply with the requirements of ~~Rules 164 and~~ Rule 433 of under the ~~Rules and Regulations~~ Securities Act applicable to any Issuer Free Writing Prospectus, including ~~the requirements relating to~~ timely filing with the ~~Commission~~Commission where required, legending and record keeping. The Company represents that is has satisfied and agrees that it will satisfy the ~~condition~~ conditions set forth in Rule 433 of the Rules ~~and Regulations~~ to avoid a requirement to file with the Commission any ~~electronic road show~~Road Show. (xvii) For a period of 2 years after the date of this Agreement, the Company shall use its commercially reasonable efforts to maintain the registration of the shares of Common Stock on the Nasdaq Capital Market. (xviii) As of the later of the Closing Dates, if requested by the Representative, the Company shall retain a financial public relations firm reasonably acceptable to the Representative and the Company, which firm shall be experienced in assisting issuers in public offerings of securities and in their relations with their security holders, and shall retain such firm or another firm reasonably acceptable to the Representative for a period of not less than two (2) years after the date of this Agreement. (xix) Provided that the Firm Shares are sold in accordance with the terms of this Agreement, the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), for a period of twelve (12) months after the date the Offering is completed, to act as lead or managing underwriter, exclusive placement agent, exclusive financial advisor or in any other similar capacity, on the Representative’s customary terms and conditions, in the event the Company or any Subsidiary retains or otherwise uses (or seeks to retain or use) the services of an investment bank or similar financial advisor to pursue a registered, underwritten public offering of securities (in addition to the Offering), a private placement of securities, a merger, acquisition of another company or business, change of control, sale of substantially all assets or other similar transaction (regardless of whether the Company would be considered an acquiring party, a selling party or neither in such transaction) (each, a “Subject Transaction”). The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof, by providing written notice thereof by registered mail or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of First Refusal with respect to any Subject Transaction within five (5) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any Subject Transaction; provided that any such election by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other Subject Transaction. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Rep

Appears in 1 contract

Sources: Underwriting Agreement (Energous Corp)

Common use of Covenants and other Agreements of the Company and the Underwriters Clause in Contracts