Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 2 contracts

Samples: Underwriting Agreement (GTCR Fund Vii Lp), Underwriting Agreement (Syniverse Technologies Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [~~Intentionally Omitted~~Reserved]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives; however, ~~except (A) with respect to Shares to be sold hereunder, (B) the grant by~~ the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of may issue shares of Common Stock in ~~connection with a strategic partnering transaction and (E) in exchange for all or substantially all~~ an aggregate amount not to exceed 5% of the ~~equity~~ Company’s outstanding shares of Common Stock after giving effect to the issuance or ~~assets~~ sale of ~~a company~~ Common Stock offered hereby in connection with an acquisition by the Company of any business, products or technologies provided that the holders of any shares of Common Stock issued pursuant to this subclause shall agree to be bound by an agreement substantially in the form of Exhibit A hereto for a ~~merger~~ period that shall not exceed the remainder of the 180-day restricted period. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or ~~acquisition~~material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representatives waive, in writing, such extension. (xii) The Company will use its best efforts to list the shares for quotation on The Nasdaq Global Market and maintain the listing of the Shares on ~~the New York Stock Exchange~~The Nasdaq Global Market. (xiii) The Company has caused each ~~officer~~ officer, director, Selling Shareholder and ~~director and each~~ shareholders beneficially owning 1% or more of the ~~Selling Shareholders~~ Company’s Common Stock as of ~~the Company~~ December 1, 2007 to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ~~1940 Act~~1000 Xxx. (xvxvi) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xvii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (xviii) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No Subject to the terms of the Lockup Agreement, no offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives. Notwithstanding the foregoing, except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if ~~the transfer is by~~ (1) ~~gift~~during the last 17 days of the 180-day restricted period, ~~will~~ the Company issues an earnings release or ~~intestacy,~~ material news or a material event relating to the Company occurs; or (2) ~~distribution~~ prior to ~~partners~~the expiration of the 180-day restricted period, ~~members~~ the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or ~~shareholders~~ the occurrence of ~~such Selling Shareholder, and (D) the exercise of any options~~ material news or ~~other rights granted pursuant~~ a material event relating to the Company~~’s stock option~~, ~~employee stock purchase or any of its incentive plans~~as the case may be, unless the Representatives waive, in ~~each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above~~writing, such ~~Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement~~extension. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 2 contracts

Samples: Underwriting Agreement (Cardtronics Inc), Underwriting Agreement (Cardtronics Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act,~~ and Regulations and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus or any document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations or the rules and regulations under the Exchange Act, as applicable, and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (iA) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (iiB) prepare and file with the ~~Commission~~ commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its shareholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as ~~soon as they have been prepared by or~~ that term is defined in the Rules and Regulations, which are ~~available to~~ not consolidated in the Company~~, a copy of any unaudited interim~~ 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectusstatements. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.,~~ BT Alex. Xxxxx Incorporated except ~~(A) with respect to Shares to be sold hereunder, (B) the grant by~~ that the Company may, without such consent, issue shares upon the exercise of ~~stock options, restricted stock or other awards~~ options issued pursuant to the Company~~’s benefit plans as described in the Prospectus; provided that such options~~'s 1988 Option Plan, ~~restricted stock or other awards do not become exercisable or vest during such 90 day period~~1994 Stock Option Plan, ~~(C) the issuance by~~ 1995 Stock Option Plan and 1996 Director Option Plan and the Company of may issue shares ~~of Common~~ under its 1996 Employee Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionPurchase Plan. (~~xii~~ix) The ~~Company will use its best efforts~~ Shares have been approved for quotation, subject to ~~maintain the listing~~ notice of ~~the Shares~~ issuance, on the ~~New York Stock Exchange~~Nasdaq National Market. (~~xiii~~x) The Company has caused each officer and director ~~and each of the Selling Shareholders~~ of the Company to furnish to you, on or prior to the date of this ~~agreement~~Agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Stock of the Company or derivative of Common Stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx Incorporated (~~the “~~"Lockup ~~Agreement”~~Agreements"). (~~xiv~~xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus. (xii) The Company shall not ~~invest,~~ invest or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder and no request to register the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Xxxxx Incorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form ~~W-8 or~~ W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Cost Plus Inc/Ca/)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A~~and Regulations, ~~430B or 430C under the Act,~~ and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to ~~the General Disclosure Package or~~ the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when ~~the Registration Statement or~~ any post-effective amendment thereto shall have become effective, (B~~) of receipt of any comments from the Commission, (C~~) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (DC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives ~~at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives~~ such number of ~~copies~~ copies, including originally executed copies, of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Securities Exchange Act of 1934 which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionBT Alex. Xxxxx Incorporated. (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing of~~ have the Shares approved for quotation, subject to notice of issuance, on the ~~New York Stock Exchange~~Nasdaq National Market. (~~xiii~~x) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx Incorporated (~~the “~~"Lockup ~~Agreement”~~Agreements"). (~~xiv~~xi) The Company shall not ~~invest, or otherwise use the proceeds received by the Company from its sale of the Shares~~ invest in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ~~1940 Act~~0000 Xxx. (xvxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Xxxxx Incorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the ~~Company~~Company . (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Childrens Place Retail Stores Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the ~~Representatives~~ Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on ~~Rules 430A, 430B or 430C~~ Rule 430A under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the ~~Representatives~~ Representative shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (iA) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the ~~Representatives approve~~ Representative approves its use in writing prior to first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the ~~Representatives~~ Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV hereto, (iiB) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (~~iii~~C) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (ivD) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~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 Securities within the meaning of the Act and (B) completion of the 90-day restricted period referred to in Section 4(a)(x) hereof. (iv) The Company will advise the ~~Representatives~~ Representative as promptly as practicable (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus, any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event or development within the Prospectus Delivery Period (as defined below) as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as ~~possible~~ practicable the lifting thereof, if issued. (v) The Company will cooperate with the ~~Representatives~~ Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (A) qualify as a foreign ~~corporation or to~~ corporation, (B) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (C) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Representative may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Issuer Free Writing Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~ Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Representative may reasonably request. ~~The~~ If requested, the Company will deliver to the ~~Representatives~~ Representative at or before the Closing Date, ~~four~~ two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested~~), including documents incorporated by reference therein,~~ ) and of all amendments thereto, as the ~~Representatives~~ Representative may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to ~~the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) ~~in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy~~ satisfying the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any ~~shares of Common Stock~~ Ordinary Shares or ~~enter~~ other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ or exchangeable or exercisable for Ordinary Shares or derivative of the ~~Company~~ Ordinary Shares (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ the Representative. The restrictions contained in this Section 4(a)(x) shall not apply to: (~~A) with respect to Shares to be sold hereunder, (B~~1) the ~~grant by the Company~~ issuance of ~~stock~~ Ordinary Shares upon exercise, conversion, settlement or vesting of any outstanding warrants, share options, restricted ~~stock~~ share units or other derivative securities or share-based awards granted pursuant to the Company’s equity incentive and employee benefit plans ~~as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period,~~ (Cincluding employee share purchase plans) ~~the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described~~ disclosed in the Prospectus, (D2) the issuance of Ordinary Shares, or the issuance of options to purchase Ordinary Shares, or the grant of other equity-based awards (including any securities convertible into Ordinary Shares), pursuant to the Company’s equity incentive and employee benefit plans (including employee share purchase plans) disclosed in the Prospectus, (3) the filing of any registration statement on Form S-8 with respect to the Company’s equity incentive and employee benefit plans (including employee share purchase plans) disclosed in the Prospectus, (v) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with the acquisition by the Company or any of ~~shares~~ the Subsidiaries of ~~Common Stock~~ the securities, business, properties or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company or any of the Subsidiaries in connection with ~~a strategic partnering transaction and~~ any such acquisition, or (E5) ~~in exchange~~ the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for ~~all~~ Ordinary Shares or ~~substantially all of the equity or assets of a company~~ other securities) in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case of clauses (4) and (5), (Y) the aggregate number of securities issued in all such acquisitions and transactions does not exceed 10% of the outstanding Ordinary Shares following the issuance and sale of the Shares to be sold hereunder and (Z) the Company shall cause each recipient of such securities to execute and deliver to you, on or prior to the issuance of such securities, a ~~merger or acquisition~~lock-up letter as described in Section 4(a)(xii) (and with the same date of expiration). (~~xii~~xi) The Company will use its reasonable best efforts to maintain the listing of the Shares on the ~~New York Stock Exchange~~NASDAQ Global Select Market. (~~xiii~~xii) The Company has caused each executive officer and director and each ~~of the~~ Selling ~~Shareholders of the Company~~ Shareholder to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the ~~Common Stock~~Ordinary Shares. (~~xvi~~xiv) The Company will not knowingly take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each Each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (~~iii~~ii) Such Selling Shareholder will not knowingly take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iviii) Such Selling Shareholder ~~agrees that it~~ will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), ) and ~~agrees that it~~ will not distribute any written materials in connection with the offer or sale of the Shares. (viv) During the Prospectus Delivery Period, such Selling Shareholder will advise the ~~Representatives~~ Representative promptly, and will confirm such advice in writing to the ~~Representatives~~Representative, of any change in the ~~information relating to such~~ Selling Shareholder ~~in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package~~Information.

Appears in 1 contract

Samples: Equity Underwriting Agreement (SunEdison Semiconductor LTD)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several ~~Underwriters that~~Underwriters: (i) ~~The Company will (A)~~ To prepare the Prospectus in a form reasonably approved by you and ~~timely~~ to file ~~with the Commission under~~ such Prospectus pursuant to Rule 424(b) under the Act ~~a Prospectus in a form approved by the Representatives~~ containing information previously omitted at the time of effectiveness in reliance on Rule 430A of the Rules and Regulations not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement ~~in reliance on Rules 430A~~or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to advise you, ~~430B or 430C under~~ promptly after it receives notice thereof, of the ~~Act, (B) not file~~ time when any amendment to the Registration Statement or ~~distribute an amendment~~ the ADR Registration Statement has been filed or becomes effective or any supplement to the ~~General Disclosure Package or the~~ Prospectus or ~~document incorporated by reference therein of which the Representatives shall not previously have~~ any amended Prospectus has been ~~advised~~ filed and ~~furnished~~ to furnish you with ~~a copy or~~ copies thereof; to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (eachadvise you, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV heretopromptly after it receives notice thereof, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order ~~suspending the effectiveness~~ or of ~~the Registration Statement or~~ any order preventing or suspending the use of any Preliminary Prospectus or Prospectus, of the suspension of the qualification of the ADSs for offering or sale in any ~~Issuer Free Writing Prospectus~~ jurisdiction, of the initiation or ~~the Prospectus~~threatening of any proceeding for any such purpose, or of any request by the ~~institution~~ Commission for the amending or supplementing of the Registration Statement, the ADR Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any ~~proceedings for that purpose~~ stop order or ~~pursuant~~ of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification, promptly to ~~Section 8A of the Act. The Company will~~ use its best efforts to ~~prevent~~ obtain the ~~issuance~~ withdrawal of ~~any~~ such ~~order and to obtain as soon as possible the lifting thereof, if issued~~order. (vii) ~~The Company will cooperate with the Representatives in endeavoring~~ Promptly from time to time to take such action as you may reasonably request to qualify the ~~Shares~~ ADSs for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the ~~Representatives may reasonably have designated~~ continuance of sales and dealings therein in ~~writing and will make~~ such ~~applications, file such documents, and furnish such information~~ jurisdictions for as long as may be ~~reasonably required for that purpose~~necessary to complete the distribution of the ADSs, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Sharesjurisdiction. (viiii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, ~~four~~ five signed copies of the Registration Statement and the ADR Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of conformed copies of the Registration Statement and the ADR Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~iv) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission ~~thereunder~~thereunder and the German Sales Prospectus Act (Verkaufsprospektgesetz), the Stock Admission Act (Boersengesetz) and the rules and regulations of the New Market (Neuer Markt) of the Frankfurt Stock Exchange, so as to permit the completion of the distribution of the ~~Shares~~ ADSs as contemplated in this ~~Agreement~~ Agreement, the Prospectus and the ~~Prospectus~~German Offer Documents. If If, during the period in which a ~~prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ Prospectus is required by ~~law to be delivered by an Underwriter or dealer~~the Act, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion Deutsche Bank AG acting as representative of the Underwriters, it becomes necessary to amend or supplement the Prospectus or the German Offer Documents in order to make the statements therein, in the light of the circumstances existing at the ~~time the Prospectus is delivered to a purchaser~~time, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus or the German Offer Documents to comply with ~~any law~~the Act, the Verkaufsprospektgesetz or the Boersengesetz, the Company promptly will ~~either (i)~~ prepare and file with the Commission and/or the Deutsche Borse, an appropriate amendment to the Registration ~~Statement or~~ Statement, supplement to the Prospectus or ~~(ii) prepare and file with~~ amendment to the ~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus~~ German Offer Documents so that the Registration Statement, the Prospectus or the German Offer Documents, whichever is applicable, as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Registration Statement, Prospectus or the German Offer Documents will comply with the ~~law~~Act or the Verkaufsprospektgesetz and Boersengesetz. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixv) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event ~~not~~ no later than ~~15 months~~ 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 of the Registration ~~Statement~~Statement and the ADR Registration Statement occurs (or 90 days if such 12-month period coincides with the Company's year end), an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering ~~a period of at least 12 consecutive months beginning after the effective date of the Registration Statement~~such 12-month period, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvi) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and all other documents, reports and information furnished by the Company ~~will furnish~~ to its shareholders or filed with any securities exchange or the Nasdaq National Market pursuant to the ~~Underwriters, as soon as they have been prepared by~~ requirements of such exchange or ~~are available~~ the Nasdaq National market or with the Commission pursuant to the ~~Company, a copy of any unaudited interim financial statements~~ Act or the Exchange Act or the Boersenzulassungsverordnung or the regulation of the ~~Company for any period subsequent to~~ New Market (Neuer Markt) of the ~~period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus~~Frankfurt Stock Exchange. (xivii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any ordinary shares ~~of Common Stock~~ or ~~enter into~~ any ~~Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ other capital stock of the Company or other securities convertible into or exchangeable or exercisable for ordinary shares or ADSs will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least~~ Deutsche Bank ~~Securities Inc. or Xxxxxx Brothers Inc.~~AG, except ~~(A) with respect to Shares to be sold hereunder, (B) the grant by~~ that the Company ~~of stock options~~may, ~~restricted stock~~ without such consent, issue ordinary shares or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock ADSs upon the exercise of ~~an option or warrant~~ options outstanding on the date ~~hereof~~ of this Agreement and ~~which is described in~~ grant options pursuant to the ~~Prospectus~~Trintech Group Limited Share Option 1990 Scheme, the Trintech Group Limited Share Option 1997 Scheme, the Trintech Group Limited Directors and Consultants Share Option Scheme, the 1999 Employee Savings Related Share Option Scheme and the 1999 Employee Share Purchase Plan (Dcollectively, "Share Plans") and issue shares or ADSs upon the ~~issuance by the Company~~ exercise of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionany such option. (~~xii~~viii) The Company ~~will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused~~ shall cause each director, executive officer and ~~director and each of the~~ Selling ~~Shareholders of the Company~~ Shareholder to furnish to you, on or prior to the date of this ~~agreement~~Agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any ordinary shares or ADSs of the Company or other capital stock of the Company, or any other securities convertible into, exchangeable or exercisable for ordinary shares owned by such person (or as ~~Exhibit A (~~to which such person has the ~~“Lockup Agreement”)~~right to direct the disposition of) for a period of 90 days after the date of the Prospectus, except with the prior written consent of Deutsche Bank AG. (~~xiv~~ix) The Company shall apply the net proceeds of the sale of the ADSs hereunder as set forth under the caption "Use of Proceeds" in the Prospectus and under the caption "Verwendung des Emissionserloses" in the German Offer Documents. (x) The Company shall not invest, or otherwise use the net proceeds received by the Company from ~~its~~ the sale of the ~~Shares~~ ADSs to the Underwriters in such a manner as would require the Company or ~~any of~~ the ~~Subsidiaries~~ Subsidiary to register as an "investment ~~company~~ company" under the 1940 Act. (xvxi) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the ~~Company~~Company or if required for the Nasdaq National Market designation, a registrar for ~~the Common Stock~~its ordinary shares and ADSs. (~~xvi~~xii) The Company will not take, directly or indirectly, any action ~~designed~~ designated to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of ordinary shares or the ADSs. (xiii) The Company will furnish to each of the Underwriters until the end of the distribution period for the ADSs and for three months thereafter, copies of the German Offer Documents in such quantities as Deutsche Bank AG may from time to time reasonably request, and, if at any time prior to the completion of the initial distribution, or up to three months thereafter, of the ADSs, any event shall have occurred as a result of which any German Offer Document as then amended or supplemented would include an untrue statement of 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 for any other reason it shall be required under applicable law during such period to amend or supplement any German Offer Document, if during such period to amend or supplement any German Offer Document, it will notify Deutsche Bank AG promptly and confirm such notice in writing, and will prepare and furnish to each of the Underwriters, without charge to any of the Underwriters, as many copies as Deutsche Bank AG may, from time to time, reasonably request of an amendment or supplement to such German Offer Documents which will correct such statement or omission or effect such compliance. (xiv) The Company will notify Deutsche Bank AG, for the benefit of all of the Underwriters, promptly of any material change affecting any of the Company's representations, warranties, agreements and indemnities contained herein at any time prior to payment at the Closing Date, and will take such steps as may be reasonably requested by the Underwriters to remedy and/or make appropriate disclosure regarding the same. (xv) The Company will take such action and file such information from time to time on a timely basis as may be necessary to list, and maintain the listing of the ADSs on the Regulated Market/New Market of the Frankfurt Stock Exchange, and comply with all obligations and requirements of the Regulated Market/New Market of the Frankfurt Stock Exchange so as to cause such listing to be maintained. (xvi) The Company will not make or cause to be made, any press or public announcement or statement likely to lead to the publication of information concerning the offer of the ADSs, in Germany or elsewhere, after the execution and delivery hereof and prior to the Closing Date; provided, however, the foregoing -------- ------- shall not apply in relation to events or activities in the ordinary course of business (other than in relation to the offer), which were already in the public domain before the date hereof, or in relation to announcements or statements which, in the opinion of Deutsche Bank AG will not have or are not likely to have an adverse effect on the offer of the ADSs. If an announcement ("Mitteilung") is required to be made pursuant to any applicable law, regulation or order, the Company may make such announcement; provided, however, that the Company shall ----------------- provide Deutsche Bank AG with prior notice thereof -19- and consult with Deutsche Bank AG prior to the making of such announcement to the extent practicable and legally permissible. (xvii) The Company will use its best efforts to ensure that it will not become a PFIC and, if it becomes a PFIC, to comply with any applicable reporting and other requirements of Subparts A, B and C of Part VI of Subchapter P of the Code. (xviii) To the extent that, and for as long as, the laws of the Republic of Ireland, Germany or the United States require any permit or approval by, or exemption of, any local authority of the transactions contemplated hereby to be legally permitted and to remain effective, the Company will use commercially reasonable best efforts to obtain and maintain each such permit, approval or exemption valid and in full force and effect. (xix) To pay any and all stamp, transfer, withholding or other similar taxes in connection with the execution and delivery of this Agreement and delivery of the ADSs Shares that are sold by the Company to the Underwriters. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, ~~sale~~sale or other disposition of any ordinary shares or any other capital stock of the Company, ~~pledge, contract to sell (~~including any ~~short sale)~~right, ~~grant any option to purchase~~ convertible, exchangeable or ~~otherwise dispose of any~~ exercisable into ordinary shares ~~of Common Stock~~ or ~~enter into any Hedging Transaction relating to the Common Stock of the Company~~ ADSs, will be made ~~by such Selling Shareholder~~ for a period of 90 days after the date of the Prospectus, directly or indirectly, by the ~~Company~~ Selling Shareholders otherwise than hereunder or with the prior written consent of ~~at least~~ Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementAG. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Option Closing Date a properly completed and executed ~~United States~~ U.S. Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling ~~Shareholder~~ Shareholders will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or ~~might~~ could reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Global Underwriting Agreement (Trintech Group PLC)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, as applicable, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV V hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii~~) [Intentionally Omitted]. (iv~~) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (viv) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~vi) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the ~~period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer~~Prospectus Delivery Period, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (~~viii~~vii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with lawPackage. (ixviii) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (xix) Prior to the Closing Date, the Company will furnish to the Underwriters, ~~as soon as they have been prepared by or are available to~~ immediately following the review of the Company’s audit committee, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xix) No offering, sale, pledge, contract to sell (including any short sale), grant of any option to purchase or otherwise dispose of any ~~shares of~~ Common ~~Stock~~ Shares, or ~~enter~~ a stock option or warrant and any other security convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto)~~ or exchangeable for Common Shares, hedging transaction relating to the Common ~~Stock of the Company~~ Shares or agreement for such will be made for a period of 90 180 days after the date of the ~~Prospectus~~Prospectus (the “Lock Up Period”), directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives in each case, except for (A) ~~with respect~~ the registration of the Shares and the sales to ~~Shares~~ the Underwriters pursuant to ~~be sold hereunder~~this Agreement, (B) issuances of Common Shares upon the ~~grant by the Company~~ exercise of ~~stock options, restricted stock~~ options or ~~other awards pursuant to the Company’s benefit plans~~ warrants or conversion of preferred shares disclosed as ~~described~~ outstanding in the Registration Statement, the General Disclosure Package and the Prospectus~~; provided that such options~~, ~~restricted stock or other awards do not become exercisable or vest during such 90 day period,~~ and (C) the issuance by of employee stock options not exercisable during the Lock-Up Period pursuant to employee incentive plans of the Company ~~of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is~~ described in the ~~Prospectus~~Registration Statement, the General Disclosure Package and the Prospectus and (D) the issuance of shares or securities convertible into such shares in exchange for the assets or equity of another entity in connection with the acquisition, joint venture or other similar strategic transaction by the Company ~~of shares~~ provided that the number of Common ~~Stock~~ Shares issued or underlying securities convertible, exchangeable or exercisable (including pursuant to warrants or other rights) for Common Shares issued in ~~connection with a strategic partnering transaction~~ any case pursuant to clause (D) shall not exceed 10% of outstanding shares following the offering shares and provided further that, prior to the issuance of any such securities pursuant to clause (ED), the Company shall cause the recipients of such securities to execute and deliver to you Lock-Up Agreements, each substantially in the form of Exhibit A hereto. Notwithstanding the foregoing, if (1) ~~in exchange for all or substantially all~~ during the last 17 days of the ~~equity~~ Lock Up Period, the Company issues an earnings release or ~~assets~~ material news or a material event relating to the Company occurs; or (2) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the 16-day period following the last day of the Lock Up Period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a ~~company~~ material event relating to the Company, as the case may be, unless the Representatives waive, in ~~connection with a merger or acquisition~~writing, such extension. (~~xii~~xi) The Company will use its best efforts to list the Shares on The NASDAQ Global Market and effect and maintain the listing of the Shares on ~~the New York Stock Exchange~~The NASDAQ Global Market. (~~xiii~~xii) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiii) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant of any option to purchase or otherwise dispose of any ~~shares~~ Common Shares (including, without limitation, Common Shares that may be deemed to be beneficially owned by the undersigned on the date hereof in accordance with the rules and regulations of the Securities and Exchange Commission, Common ~~Stock~~ Shares that may be issued upon exercise of a stock option or warrant and any other security convertible into or exchangeable for Common Shares) or enter into any Hedging Transaction (as defined in the form of lock up agreement attached hereto as Exhibit A (the “Shareholder Lock Up Agreement”)) relating to the Common ~~Stock~~ Shares during the Lock Up Period. Pursuant to the Shareholder Lock Up Agreement, if (1) during the last 17 days of the Lock Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the Lock Up Period, the Company announces that it will ~~be made~~ release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by ~~such Selling Shareholder for a~~ this Agreement shall continue to apply until the expiration of the 18-day period ~~of 90 days after~~ beginning on the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale release of the ~~Shares, (C) any~~ earnings results or ~~all~~ the occurrence of ~~the shares of Common Stock~~ material news or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant a material event relating to the Company~~’s stock option~~, ~~employee stock purchase or any of its incentive plans~~as the case may be, unless the Representatives waive, in ~~each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above~~writing, such ~~Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement~~extension. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Equity Underwriting Agreement (ALPHA & OMEGA SEMICONDUCTOR LTD)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) ~~The Company will (A) prepare and timely file with the~~ Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430Apursuant to EDGAX, ~~430B or 430C under the Act, (B) not file any amendment~~ xxcept to the ~~Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated~~ extent permitted by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters.Regulation S-T. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~BT Alex. Browx Xxxorporated, except that the Company may, without such consent, (A) ~~with respect to Shares to be sold hereunder,~~ issue shares upon exercise of (B1) options outstanding on the ~~grant by the Company~~ date of ~~stock options, restricted stock or other awards~~ this Agreement issued pursuant to the Company~~’s benefit~~ 's currently existing stock-based compensation plans ~~as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period,~~ and (C2) ~~the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant~~ warrants outstanding on the date ~~hereof~~ of this Agreement, and ~~which is described in the Prospectus~~(B) grant options, ~~(D) the issuance by the Company of~~ offer to sell and sell shares of its Common Stock ~~in connection with a strategic partnering transaction~~ to its employees, directors and ~~(E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition~~consultants pursuant to its currently existing stock-based compensation plans. (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ list, subject to notice of issuance, the Shares on the ~~New York Stock Exchange~~The NASDAQ National Market. (~~xiii~~x) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to sell, offer or contract to sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Browx Xxxorporated ("Lockup Agreements"). The Company further agrees not to file with the ~~“Lockup~~ Commission any registration statements on Form S-8 or equivalent on any date which is earlier than 90 days after the date of this Agreement”). (~~xiv~~xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Tweeter Home Entertainment Group Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on ~~Rules 430A, 430B or 430C~~ Rule 430A under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports ~~and any definitive proxy or information statements~~ required to be filed by the Company with the -15- Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (iA) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “"free writing prospectus” " (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “"Permitted Free Writing Prospectus”") (such approval not to be unreasonably withheld); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV V hereto, (iiB) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (~~iii~~C) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (ivD) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]. (iv)~~ The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional ~~information,~~ information and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its ~~best~~ reasonable efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (viv) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “"Prospectus Delivery Period”") is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, ~~four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives~~ such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~vi) The Company will comply with the Act and the Rules and Regulations, and the Exchange ~~Act,~~ Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances ~~existing at the time the Prospectus is delivered to a purchaser~~under which they were made, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with ~~any law~~the Act, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the ~~law~~Act. (~~viii~~vii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the ~~circumstances~~circumstances under which they were made, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with ~~any law~~the Act, the Company promptly will either ~~(i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with lawPackage. (ixviii) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (xix) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xix) No The Company shall not, directly or indirectly, (1) make any offering, sale, ~~pledge~~short sale or other disposition of any shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such), ~~contract~~ (2) file or cause to ~~sell (~~be filed a registration statement, including any ~~short sale), grant any option~~ amendments with respect to ~~purchase or otherwise dispose~~ the registration of any shares of Common Stock or ~~enter~~ securities convertible, exercisable or exchangeable into Common Stock or any ~~Hedging Transaction~~ other securities of the Company (~~as defined~~ other than a registration statement on Form S-8 with respect to employee benefits plans) or (3) publicly disclose the intention to do any of the foregoing, except, in ~~Exhibit A hereto~~each case, for (A) ~~relating to~~ the registration of the Common Stock and the sales to the Representatives pursuant to this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement and the Prospectus, (C) the issuance of employee stock options not exercisable during the Lockup Period pursuant to stock option plans described in the Registration Statement and the Prospectus, and (D) the issuance of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock or warrants or other rights to purchase Common Stock or any other securities of the Company ~~will be made~~ in connection with any acquisition, strategic partnership, joint venture or collaboration to which the Company is a party; provided the recipient of such share or security become subject to the Lockup Agreement for the remainder of the Lockup Period, in each case for a period of 90 180 days after the date of the ~~Prospectus, directly or indirectly, by the Company~~ Prospectus otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives. Notwithstanding the foregoing, ~~except~~ if (A1) ~~with respect to Shares to be sold hereunder~~during the last 17 days of the 180-day restricted period, ~~(B) the grant by~~ the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of ~~stock options~~the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted ~~stock~~ period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or ~~other awards pursuant~~ the occurrence of material news or a material event relating to the Company~~’s benefit plans~~ , as ~~described~~ the case may be, unless the Representatives waive, in ~~the Prospectus; provided that~~ writing, such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionextension. (~~xii~~xi) The Company will use its ~~best~~ reasonable efforts to list the Shares, subject to notice of issuance, on the New York Stock Exchange and effect and maintain the listing of the Shares on the ~~New York Stock Exchange~~NYSE. (~~xiii~~xii) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “"Lockup Agreement”"). (xiii) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (xvii) The Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives. Notwithstanding the foregoing, except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if ~~the transfer is by~~ (1) ~~gift~~during the last 17 days of the 180-day restricted period, ~~will~~ the Company issues an earnings release or ~~intestacy,~~ material news or a material event relating to the Company occurs; or (2) ~~distribution~~ prior to ~~partners~~the expiration of the 180-day restricted period, ~~members~~ the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or ~~shareholders~~ the occurrence of ~~such Selling Shareholder, and (D) the exercise of any options~~ material news or ~~other rights granted pursuant~~ a material event relating to the Company~~’s stock option~~, ~~employee stock purchase or any of its incentive plans~~as the case may be, unless the Representatives waive, in ~~each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above~~writing, such ~~Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement~~extension. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “"free writing prospectus” " (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the ~~Shares~~Shares other than in accordance with this Agreement or as otherwise agreed by the Representatives. (v) During the Prospectus Delivery Period, such Selling ~~Shareholder~~ Stockholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any material change in the information relating to such Selling ~~Shareholder~~ Stockholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Equity Underwriting Agreement (RSC Holdings Inc.)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the ~~Representatives~~ Underwriters containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act~~and Regulations, (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to ~~the General Disclosure Package or~~ the Prospectus or document incorporated by reference therein of which the ~~Representatives~~ Underwriters shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Underwriters shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the ~~Representatives~~ Underwriters promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the ~~Representatives~~ Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Underwriters may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the ~~Representatives~~Underwriters, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives Underwriters during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Underwriters may reasonably request. The Company will deliver to the ~~Representatives~~ Underwriters at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the ~~Representatives~~ Underwriters may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Underwriters copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Underwriters similar reports with respect to significant subsidiaries, as ~~soon as they have been prepared by or~~ that term is defined in the Rules and Regulations, which are ~~available to~~ not consolidated in the Company's financial statements. (viii) Except in connection with the issuance of shares of Common Stock (A) hereunder, ~~a copy of any unaudited interim financial statements~~ (B) to holders of the ~~Company for any period subsequent to the period covered by the most recent financial statements appearing~~ Noteholder Warrants (as defined in the Registration Statement) upon the exercise of such Noteholder Warrants and (C) to Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx and Xxxx X. Xxxxx pursuant to the ~~General Disclosure Package and the Prospectus. (xi) No~~ Company's 1996 Warrant Plan, no offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company or the Selling Shareholders otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionAlex. Xxxxx & Sons Incorporated. (~~xii~~ix) The Company will use its best efforts to ~~maintain~~ list, subject to notice of issuance, the ~~listing~~ Shares on The Nasdaq Stock Market. (x) The Company shall apply the net proceeds of its sale of the Shares on as set forth in the ~~New York Stock Exchange~~Prospectus. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xivxi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 ~~Act~~Act or the rules and regulations thereunder. (xvxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company ~~will be made~~ or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Shareholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than (A) hereunder or (B) with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementAlex. Xxxxx & Sons Incorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form ~~W-8 or~~ W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Universal Outdoor Holdings Inc)

Covenants of the Company and the Selling Shareholders. (ai) The Company covenants and agrees with the several Underwriters that: (ia) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the ~~Act,~~ Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (iib) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing ~~Prospectus(es)~~ Prospectuses included in on Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (~~iii~~c) [~~Intentionally Omitted~~The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Shares, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object.]. (ivd) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus, any Issuer Free Writing Prospectus, or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event or development within the Prospectus Delivery Period (as defined below) as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (ve) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (x) qualify as a foreign ~~corporation or to~~ corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vif) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (~~viii~~h) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with lawPackage. (ixi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (xj) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xik) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives; provided, ~~except~~ however, that (~~A) with respect to Shares to be sold hereunder, (B~~i) the ~~grant by the~~ Company ~~of stock options, restricted stock~~ may issue and sell Common Stock or ~~other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock~~ securities convertible into or ~~other awards do not become~~ exercisable or ~~vest during such 90 day period, (C) the issuance by the Company of~~ exchangeable for shares of Common Stock ~~upon~~ pursuant to any compensatory stock option plan, stock ownership plan or dividend reinvestment plan of the ~~exercise of an option or warrant outstanding on~~ Company in effect at the ~~date hereof~~ Applicable Time and ~~which is described~~ disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (Dii) the ~~issuance by the~~ Company may issue and sell up to an aggregate of 149,285 shares of Common Stock pursuant to certain rights of its aircraft lessors to purchase shares of Common Stock disclosed in ~~connection with a strategic partnering transaction~~ the Registration Statement, the General Disclosure Package and the Prospectus, and (Eiii) the Company may issue Common Stock issuable upon the exercise or conversion of securities outstanding at the Applicable Time or pursuant to the transactions contemplated by the 2014 Recapitalization Agreement, as disclosed in ~~exchange for all or substantially all~~ the Registration Statement, General Disclosure Package and the Prospectus. Notwithstanding the foregoing, if (1) during the last 17 days of the ~~equity~~ 180-day restricted period, the Company issues an earnings release or ~~assets~~ material news or a material event relating to the Company occurs, or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a ~~company~~ material event relating to the Company, as the case may be, unless the Representatives waive, in ~~connection with a merger~~ writing, such extension. The Company shall promptly notify the Representatives of any earnings release, news or ~~acquisition~~event that may give rise to an extension of the initial 180-day restricted period. (~~xii~~l) The Company will use its best efforts to ~~maintain the listing of~~ list the Shares on the ~~New York Stock Exchange~~NASDAQ Global Market. (~~xiii~~m) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ shareholder of the Company listed on Schedule V attached hereto to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lockup Agreement for an officer or director of the Company and provides the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit B hereto, at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service or any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release or waiver. (~~xiv~~n) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. (o) The Company shall file with the Commission such information on Form 10-Q or Form 10-K, as may be required by Rule 463 under the Act. (p) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ~~1940 Act~~0000 Xxx. (xvq) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~r) The Company has entered, or will enter, stop transfer instructions with its transfer agent and registrar against the transfer of any of its equity securities by any person or entity who is an equityholder on the date hereof and is subject to the transfer restrictions set forth in a Lockup Agreement. The Company will not lift such stop transfer instructions during the period ending 180 days after the date of the Prospectus (or such restricted period as may be extended as set forth in the Lockup Agreements and the last paragraph of Section 4(k)) without the prior written consent of the Representatives on behalf of the Underwriters. (s) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (bii) Each of the Selling ~~Shareholders~~ Shareholders, severally and not jointly, covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (iia) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the ~~transactions~~ transaction herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (vb) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any material change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Virgin America Inc.)

Covenants of the Company and the Selling Shareholders. ~~(a)~~ The Company (and each Selling Shareholder with respect to Paragraph (j) of this Section 5 only) covenants and agrees with the several Underwriters that: (ia) The Company will (Ai) prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus ~~in a form approved by the Representatives~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act~~and Regulations, (Bii) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus or ~~document~~ documents incorporated by reference therein of which the ~~Representatives~~ Underwriters shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Underwriters shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (Ciii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (ivb) The Company will advise the ~~Representatives~~ Underwriters promptly ~~(A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C)~~ of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, ~~and (D)~~ or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of~~ purpose, and the ~~Act. The~~ Company will use ~~its best~~ reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vic) The Company will deliver to, or upon the order of, the ~~Representatives~~Underwriters, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives Underwriters during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Underwriters may reasonably request. The Company will deliver to the ~~Representatives~~ Underwriters at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Underwriters such number of copies of the Registration ~~Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested)~~Statement, ~~including documents incorporated by reference therein~~but without exhibits, and of all amendments thereto, as the ~~Representatives~~ Underwriters may reasonably request, including documents incorporated by reference therein. (~~vii~~d) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you in writing when such statement has been so made available. (e) The Company will, for a period of five years from the Closing Date, deliver to the Underwriters copies of annual reports and copies of all other documents, reports and information furnished by the Company to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (f) No offering, sale, short sale or other disposition of any Common Stock or other securities convertible into or exchangeable or exercisable for shares of Common Stock of the Company will be made by the Company for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder, or with the prior written consent of Alex. Browx & Xons Incorporated, except that the Company may, without such consent, grant options or issue shares of Common Stock pursuant to the exercise of options granted under the Company's current stock option plans and may offer or issue shares of Common Stock in connection with the acquisition of stock or assets of another person. (g) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xiih) The Company will use its best efforts to ~~maintain the listing~~ list, subject to notice of issuance, the Shares on the ~~New York Stock Exchange~~NYSE. (~~xiii~~i) The Company has caused each ~~officer and director and each~~ of ~~the Selling Shareholders of the Company to~~ L. Lxxxx Xxxs xxx B. J. XxXxxxx xx furnish to you, on or or prior to the date of this agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for common stock or derivative of common stock owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Browx & Xons Incorporated (~~the “~~"Lockup ~~Agreement”~~Agreements"). (~~xiv~~j) Each of the Selling Shareholders agrees not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other securities convertible, exchangeable or exercisable for common stock or derivative of common stock owned by such Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of Alex. Browx & Xons Incorporated. (k) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act"). (xvl) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~m) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Clear Channel Communications Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A~~and Regulations, ~~430B or 430C under the Act,~~ and (B) not file any amendment to the Registration Statement or ~~distribute an~~ any amendment or supplement to ~~the General Disclosure Package or~~ the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order or proceeding and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.may (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Exchange Act and the Rules and ~~Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder,~~ Regulations so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) -13- 14 of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such earnings statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange on The Nasdaq Stock Market pursuant to the ~~Underwriters~~requirements of such exchange or The Nasdaq Stock Market or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing that term is defined in the ~~Registration Statement~~Rules and Regulations, which are not consolidated in the ~~General Disclosure Package and the Prospectus~~Financial Statements. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short sale), ~~grant any option to purchase~~ pledge or ~~otherwise dispose~~ other disposition of any shares of Common Stock of the Company or ~~enter~~ other capital stock of the Company, or other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ or exchangeable or exercisable for shares of Common Stock or derivatives of Common Stock of the Company (or entering into agreements for such) will be made for a period of 90 360 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder except (A) that the Company may issue, and grant options or warrants to purchase, shares of Common Stock of the Company or any shares convertible into, exercisable for or exchangeable for shares of Common Stock of the Company, upon the exercise of outstanding options and warrants and its issuance of options and stock granted under the existing stock option plan, (B) in connection with acquisition transactions, or (C) with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionBT Alex. Browx Xxxorporated. (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ promptly list, subject to notice of issuance, the Shares on the ~~New York Stock Exchange~~Nasdaq National Market. (~~xiii~~x) The Company has caused each executive officer and director ~~and each of the Selling Shareholders~~ of the Company to furnish to you, on or prior to the date of this ~~agreement~~Agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the Underwriters ("Lockup Agreements"), pursuant to which each such person has agreed not to offer, sell, sell short, pledge or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for shares of Common Stock of the Company or derivatives of Common Stock of the Company (or enter into agreements for such) owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the right to direct the disposition of) for a period of 360 days after the date of this Agreement, directly or indirectly, except (A) as otherwise provided in the ~~form attached hereto as Exhibit A~~ Lockup Agreements or (B) with the ~~“Lockup Agreement”)~~prior written consent of BT Alex. Browx Xxxorporated. (~~xiv~~xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus. (xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an "investment ~~company~~ company" within the meaning of such term under the 1940 ~~Act~~Act and the Rules and Regulations. (xvxiii) The Company will maintain a transfer agent and, if necessary under the ~~jurisdiction of incorporation~~ laws of the ~~Company~~State of Delaware, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of ~~any securities~~ the Common Stock of the Company. (b) Each of the Selling Shareholders severally covenants and agrees with each of the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short sale), ~~grant any option to purchase~~ pledge or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivatives of Common Stock (or entering into any agreement for such) owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 360 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than ~~hereunder~~ hereunder, except (A) as otherwise provided in the Lockup Agreement by and between you and Selling Shareholder or (B) with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Browx Xxxorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form ~~W-8 or~~ W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of ~~any securities~~ the Common Stock of the Company~~. (iv) Such~~ . Other than as permitted by the Act, the Selling Shareholder ~~agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it~~ will not distribute any ~~written~~ prospectus or other offering materials in connection with the ~~offer or sale~~ offering of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Mobile Mini Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the ~~Representatives~~ Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules ~~430A, 430B or 430C~~ 430A under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the ~~Representatives~~ Representative shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (iA) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the ~~Representatives approve~~ Representative approves its use in writing prior to first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the ~~Representatives~~ Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV hereto, (iiB) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (~~iii~~C) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (ivD) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~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 Securities within the meaning of the Act and (B) completion of the 90-day restricted period referred to in Section 4(a)(x) hereof. (iv) The Company will advise the ~~Representatives~~ Representative as promptly as practicable (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as ~~possible~~ practicable the lifting thereof, if issued. (v) The Company will cooperate with the ~~Representatives~~ Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (A) qualify as a foreign ~~corporation or to~~ corporation, (B) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (C) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Representative may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Issuer Free Writing Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~ Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Representative may reasonably request. ~~The~~ If requested, the Company will deliver to the ~~Representatives~~ Representative at or before the Closing Date, ~~four~~ two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the ~~Representatives~~ Representative may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to ~~the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) ~~in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy~~ satisfying the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any ~~shares~~ Ordinary Shares or other securities convertible into or exchangeable or exercisable for Ordinary Shares or derivative of ~~Common Stock~~ Ordinary Shares (or ~~enter into any Hedging Transaction (as defined in Exhibit A hereto~~agreement for such) ~~relating to the Common Stock of the Company~~ will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ the Representative. The restrictions contained in the foregoing sentence shall not apply to (A) ~~with respect~~ the issuance of Ordinary Shares upon exercise, conversion, settlement or vesting of any outstanding warrants, stock options, restricted stock units or other derivative security or stock-based award granted pursuant to ~~Shares to be sold hereunder~~the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (B) the issuance of Ordinary Shares, or options to purchase Ordinary Shares, or the grant by of other equity-based awards (including any securities convertible into Ordinary Shares), to employees, officers, directors, advisors or consultants of the Company ~~of stock options, restricted stock or other awards~~ pursuant to the Company’s equity incentive and employee benefit plans ~~as described~~ (including employee stock purchase plans) disclosed in the Prospectus~~; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period~~, (C) the ~~issuance by~~ filing of a registration statement on Form S-8 for the ~~Company~~ registration of ~~shares of Common Stock upon~~ Ordinary Shares issued pursuant to the ~~exercise of an option or warrant outstanding on the date hereof~~ Company’s equity incentive and ~~which is described~~ employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (D) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with the acquisition by the Company or any of ~~shares~~ the Subsidiaries of ~~Common Stock~~ the securities, business, properties or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company or any of the Subsidiaries in connection with a any such acquisition, or (E) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with joint ventures, commercial relationships or other strategic ~~partnering transaction~~ transactions; provided that, in the case of clauses (D) and (E) ), the aggregate number of shares issued in ~~exchange for~~ all ~~or substantially all~~ such acquisitions and transactions does not exceed 10% of the ~~equity or assets~~ outstanding Ordinary Shares as of ~~a company in connection with a merger or acquisition~~the date hereof. (~~xii~~xi) The Shares have been approved for listing on the NASDAQ Global Select Market, and the Company will use its best efforts to maintain the listing of the Shares on the ~~New York Stock Exchange~~NASDAQ Global Select Market. (~~xiii~~xii) The Company has caused each executive officer and director ~~and each of the Selling Shareholders~~ of the Company and each Selling Shareholder to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the ~~Common Stock~~Ordinary Shares. (~~xvi~~xiv) The Company will not knowingly take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (~~iii~~ii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iviii) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (viv) During the Prospectus Delivery Period, such Selling Shareholder will advise the ~~Representatives~~ Representative promptly, and will confirm such advice in writing to the ~~Representatives~~Representative, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Ichor Holdings, Ltd.)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act,~~ and Regulations and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and ~~Regulations~~ Regulations. To the extent applicable, the copies of the Registration Statement and each amendment thereto (Cincluding all exhibits filed therewith), any Preliminary Prospectus or Prospectus (in each case, as amended or supplemented) ~~file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent~~ furnished to the ~~date of the Prospectus and prior~~ Underwriters will be identical to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be electronically transmitted copies thereof filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to ~~Rule 433(d) under~~ EDGAX, xxcept to the ~~Act a free writing prospectus prepared~~ extent permitted by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show.Regulation S-T. (~~iii) [Intentionally Omitted]. (iv~~ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~BT Alex. Browx Xxxorporated, except that the Company may, without such consent, (A) ~~with respect to Shares to be sold hereunder,~~ issue shares upon exercise of (B1) options outstanding on the ~~grant by the Company~~ date of ~~stock options, restricted stock or other awards~~ this Agreement issued pursuant to the Company~~’s benefit~~ 's currently existing stock-based compensation plans ~~as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period,~~ and (C2) ~~the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant~~ warrants outstanding on the date ~~hereof~~ of this Agreement, and ~~which is described in the Prospectus~~(B) grant options, ~~(D) the issuance by the Company of~~ offer to sell and sell shares of its Common Stock ~~in connection with a strategic partnering transaction~~ to its employees, directors and ~~(E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition~~consultants pursuant to its currently existing stock-based compensation plans. (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ list, subject to notice of issuance, the Shares on the ~~New York Stock Exchange~~Nasdaq National Market. (~~xiii~~x) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to sell, offer or contract to sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Browx Xxxorporated ("Lockup Agreements"). The Company further agrees not to file with the ~~“Lockup~~ Commission any registration statements on Form S-8 or equivalent on any date which is earlier than 90 days after the date of this Agreement”). (~~xiv~~xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall include such information with respect thereto in such reports filed with the Commission as may be required in accordance with Rule 463 under the Act. (xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Browx Xxxorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the ~~Company~~Company . (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Tweeter Home Entertainment Group Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus ~~in a form approved by the Representatives~~ containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A~~and Regulations, ~~430B or 430C under the Act,~~ and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and ~~Regulations~~ Regulations. To the extent applicable, the copies of the Registration Statement and each amendment thereto (Cincluding all exhibits filed therewith), any Preliminary Prospectus or Prospectus (in each case, as amended or supplemented) ~~file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent~~ furnished to the ~~date of the Prospectus and prior~~ Underwriters will be identical to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be electronically transmitted copies thereof filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to ~~Rule 433(d) under~~ XXXXX, except to the ~~Act a free writing prospectus prepared~~ extent permitted by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show.Regulation S-T. (~~iii) [Intentionally Omitted]. (iv~~ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration ~~Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested)~~Statement, ~~including documents incorporated by reference therein~~but without exhibits, and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange ~~Act~~Act of 1934 (the "EXCHANGE ACT"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly ~~will~~ either (i) will prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as ~~soon as they have been prepared by~~ that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. To the extent applicable, such reports or ~~are available~~ documents shall be identical to the ~~Company~~electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, ~~a copy of any unaudited interim financial statements of the Company for any period subsequent~~ except to the ~~period covered~~ extent permitted by ~~the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus.~~Regulation S-T. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~Alex. Xxxxx & Sons Incorporated, except ~~(A) with respect to Shares to be sold hereunder, (B) the grant by~~ that the Company may, without such consent, issue shares upon the exercise of ~~stock options, restricted stock or other awards~~ options outstanding on the date of this Agreement issued pursuant to the Company~~’s benefit plans as described in the Prospectus; provided that such options, restricted~~ 's stock ~~or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an~~ option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionplans. (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ list, subject to notice of issuance, the Shares on the ~~New York Stock Exchange~~National Association of Securities Dealers Automated Quotations ("NASDAQ") National Market. (~~xiii~~x) The Company has caused each ~~officer and~~ director and ~~each of the Selling Shareholders~~ certain specified shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto as Exhibit A~~ Underwriters, pursuant to which each such person shall agree not to: (A) offer to sell, contract to sell, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Common Stock) or any securities convertible into or exchangeable for shares of Common Stock owned directly by such person or with respect to which such person has the power of disposition (including, without limitation, shares of Common Stock which such person may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act); or (B) engage in any hedging transactions with respect to the Common Stock that may have an impact on the market price of the Common Stock for a period beginning on the date of such letters and expiring 90 days following the date the Registration Statement is declared effective by the Commission (the ~~“Lockup Agreement”~~"LOCKUP PERIOD"), directly or indirectly ("LOCKUP AGREEMENTS"); PROVIDED, HOWEVER, such officers, directors and specified shareholders shall be permitted to make the following transfers: (i) transfers of up to an aggregate of 50,000 shares of Common Stock made by gift, PROVIDED the donee thereof agrees in writing to be bound by the terms hereof; (ii) transfers to the transferor's affiliates, as such term is defined in Rule 405 promulgated under the Securities Act, PROVIDED that each transferee agrees in writing to be bound by the terms hereof; (iii) transfers made with the prior written consent of Alex. Xxxxx & Sons Incorporated; and (iv) transfers pursuant to the Registration Statement. (~~xiv~~xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) ~~No offering, sale, pledge~~Such Selling Shareholder will not: (A) offer to sell, contract to ~~sell (including any short sale)~~sell, ~~grant any option to purchase~~ transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock, any options, rights or warrants to purchase any shares of Common Stock (including any stock appreciation right, or ~~enter~~ similar right with an exercise or conversion privilege at a price related to, or derived from, the market price of the Common Stock) or any securities convertible into or exchangeable for shares of Common Stock owned directly by such Selling Shareholder or with respect to which such Selling Shareholder has the power of disposition (including, without limitation, shares of Common Stock which such Selling Shareholder may be deemed to beneficially own in accordance with the rules and regulations promulgated under the Exchange Act; or (B) engage in any ~~Hedging Transaction relating~~ hedging transactions with respect to the Common Stock that may have an impact on the market price of the ~~Company will be made by such Selling Shareholder for a period of 90 days after~~ Common Stock during the ~~date of the Prospectus~~Lockup Period, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~Alex. Xxxxx & Sons Incorporated; PROVIDED, ~~except~~ HOWEVER, such Selling Shareholder shall be permitted to make the following transfers: (Ai) ~~with respect~~ transfers of up to ~~Shares to be sold hereunder, (B)~~ an aggregate of 50,000 shares of Common Stock ~~acquired in open market transactions~~ made by ~~such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1)~~ gift, ~~will or intestacy~~PROVIDED the donee thereof agrees in writing to be bound by the terms hereof; (ii) transfers to the transferor's affiliates, or as such term is defined in Rule 405 promulgated under the Securities Act, PROVIDED that each transferee agrees in writing to be bound by the terms hereof; (2iii) ~~distribution to partners, members or shareholders~~ transfers made with the prior written consent of ~~such Selling Shareholder,~~ Alex. Xxxxx & Sons Incorporated; and (Div) ~~the exercise of any options or other rights granted~~ transfers pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementRegistration Statement. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form ~~W-8 or~~ W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Cra Managed Care Inc)

Covenants of the Company and the Selling Shareholders. ~~(a)~~ 7.1 The Company covenants and agrees ~~with the several Underwriters that~~as follows: (ia) ~~The Company will (A) prepare and timely file with~~ To use all reasonable efforts to bring about the ~~Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of~~ effectiveness of the Registration Statement ~~in reliance on Rules 430A~~and not, ~~430B~~ at any time, whether before or ~~430C under~~ after the ~~Act~~effective date, ~~(B) not~~ to file any amendment to the Registration Statement or ~~distribute an amendment~~ Prospectus or supplement ~~to the General Disclosure Package or the Prospectus or document incorporated by reference therein~~ thereto of which ~~the Representatives~~ you shall not previously have been advised and furnished with a copy or to which ~~the Representatives~~ you or your counsel shall have ~~reasonably~~ objected ~~in writing~~ or which is not in compliance in all material respects with the Act and the Rules and ~~Regulations~~ Regulations, and ~~(C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by~~ as soon as the Company ~~with the Commission subsequent~~ is advised thereof, to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives ~~promptly~~ and confirm this advice in writing (Ai) when the Registration Statement ~~or any post-~~has become effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (Dii) of the issuance by the Commission or any state securities or "Blue Sky" commissioner or authority of any ~~stop~~ order suspending the effectiveness of the Registration Statement or any ~~order preventing~~ qualification of the Shares or ~~suspending~~ prohibiting the ~~use~~ sale of ~~any Preliminary Prospectus, any Issuer Free Writing Prospectus~~ the Shares or the ~~Prospectus,~~ initiation or ~~of the institution~~ threatening of any proceedings for ~~that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of~~ any such ~~order and to obtain as soon as possible the lifting thereof, if issued~~purpose. (vb) ~~The Company will cooperate~~ To deliver, on or before the effective date of the Registration Statement and from time to time thereafter until the earlier of the completion of the public offering or the period as, in the opinion of counsel for the Underwriters, the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, without charge, to the Representatives ~~in endeavoring~~ and to ~~qualify~~ send to the ~~Shares for sale under the securities laws of~~ several Underwriters, at such ~~jurisdictions~~ office or offices as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to timedesignate, as many copies of ~~any Preliminary~~ the preliminary prospectus and Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and ~~all~~ each amendment thereto furnished to the Underwriters will be substantially identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. (c) To furnish each of the Representatives, without charge, one executed copy of the Registration Statement (including exhibits) and of any amendments thereto ~~including all exhibits filed therewith~~and to furnish the Representatives, ~~and will deliver to the Representatives such~~ without charge, a reasonable number of conformed copies of the Registration Statement (~~including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein,~~ excluding exhibits) and of ~~all~~ any amendments thereto~~, as the Representatives may reasonably request~~. (~~vii~~d) ~~The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations~~ To furnish each of the ~~Commission thereunder, so as to permit~~ Representatives with a copy of each proposed amendment or supplement before amending or supplementing the Registration Statement or the Prospectus. (e) Until the earlier of the completion of the ~~distribution of the Shares as contemplated in this Agreement and the Prospectus. If during~~ public offering or the period ~~in which a prospectus (or~~as, in ~~lieu thereof~~the opinion of counsel for the Underwriters, the ~~notice referred to under Rule 173(a) under the Act)~~ Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, if any event shall occur as a result of ~~which, in the judgment of the Company or in the reasonable opinion of the Underwriters,~~ which it ~~becomes~~ shall be necessary to amend or supplement the Prospectus in order to comply with applicable law or to make the statements therein, in ~~the~~ light of the circumstances ~~existing at the time~~ when the Prospectus is delivered to a purchaser, not misleading, orforthwith to prepare and furnish, ~~if it is necessary~~ at its own expense, to the Underwriters and to dealers (whose names and addresses the Representatives will furnish to the Company) to whom Shares may have been sold by the Representatives and to any ~~time~~ other dealers upon request, either amendments or supplements to ~~amend or supplement~~ the Prospectus to ~~comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement~~ effect such compliance or ~~supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus~~ so that the ~~Prospectus~~ statements in the Prospectus, as so amended or ~~supplemented~~ supplemented, will not, in ~~the~~ light of the circumstances when it the Prospectus is ~~so delivered~~delivered to a purchaser, be misleading. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or ~~so that~~ supplement shall constitute a waiver of any of the ~~Prospectus will comply with the law~~conditions set forth in Section 6. (~~viii~~f) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will To make generally available to ~~its~~ the Company's security holders, as soon as ~~it is practicable to do so~~practicable, but ~~in any event~~ not later than 15 fifteen months after the ~~effective date~~ end of the ~~Registration Statement~~Company's current fiscal quarter, an earnings statement (which need not be audited) ~~in reasonable detail,~~ covering a period of ~~at least 12 consecutive~~ twelve months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the ~~requirements~~ provisions of the last paragraph of Section 11(a) of the Act ~~and~~ including, at the option of the Company, Rule ~~158 under the Act and will advise you in writing when such statement has been so made available~~158. (xg) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for For a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to three years following the date of this ~~agreement~~Agreement, to supply to the Representatives, and to each other Underwriter who may so request in writing, copies of such financial statements and other periodic and special reports as the Company may from time to time furnish generally to holders of any class of its securities, and to furnish each of the Representatives a ~~letter or letters, substantially in~~ copy of each annual report on Form 10-K which it files with the ~~form attached hereto as Exhibit A (the “Lockup Agreement”)~~Commission. (~~xiv~~h) ~~The Company shall not invest~~To cooperate with the Representatives in an endeavor to qualify the Shares for offer and sale under the "blue sky" laws of such jurisdictions (domestic or foreign) as the Representatives may request, and to pay, or ~~otherwise use the proceeds received~~ reimburse if paid by the ~~Company from its sale~~ Representatives, reasonable fees and disbursements of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar counsel for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants Underwriters and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired all other expenses and filing fees in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Companyconnection therewith; provided, however, that the Company shall not be required to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in ~~the case of a transfer pursuant~~ securities in any jurisdiction in which it is not so qualified or to ~~clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be~~ subject itself to ~~the provisions of the Lockup Agreement~~taxation as doing business in any jurisdiction. (iii) ~~In order to document~~ To apply the ~~Underwriters’ compliance~~ net proceeds from the sale of the Shares in accordance with the ~~reporting and withholding provisions~~ statement made under "Use of Proceeds" in the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof)Prospectus. (~~iii~~j) ~~Such Selling Shareholder will not take, directly or indirectly, any action designed~~ To supply the Representatives with copies of all correspondence to ~~cause or result in, or that has constituted or might reasonably be expected~~ and from and all documents issued to ~~constitute,~~ and by the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials Commission in connection with the ~~offer or sale~~ registration of the ~~Shares~~Shares under the Act. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (24/7 Real Media Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the ~~several~~ Underwriters that: (i) The Company ~~will (A) prepare~~ shall use its best efforts to comply with the provisions of and ~~timely file~~ make all requisite filings with the Commission ~~under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time~~ pursuant to Rules 424, 430A and 434 of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and to notify you promptly (Cin writing, if requested) ~~file on a timely basis~~ of all ~~reports and~~ such filings. The Company shall notify you promptly of any ~~definitive proxy or information statements required to be filed~~ request by the ~~Company with the~~ Commission ~~subsequent~~ for any amendment of or supplement to the ~~date of~~ Registration Statement, the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Effective Prospectus or ~~that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under~~ the ~~Act) required to be filed by~~ Final Prospectus or for additional information; the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 prepare and ~~433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing~~ file with the Commission, ~~legending and record keeping and (iv) not take~~ promptly upon your reasonable request, any ~~action that would result in an Underwriter~~ amendments of or supplements to the Registration Statement, the Effective Prospectus or the ~~Company being required to file~~ Final Prospectus which, in your opinion, may be necessary or advisable in connection with the ~~Commission pursuant~~ distribution of the Shares; and the Company shall not file any amendment of or supplement to ~~Rule 433(d) under~~ the ~~Act a free writing prospectus prepared~~ Registration Statement, the Effective Prospectus or the Final Prospectus which is not approved by you after reasonable notice thereof, such approval not to be unreasonably withheld or ~~on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder~~delayed. The Company ~~will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will~~ shall advise ~~the Representatives~~ you promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission or any State or other regulatory body of any stop order or other order suspending the effectiveness of the Registration ~~Statement~~ Statement, suspending or ~~any order~~ preventing ~~or suspending~~ the use of any Preliminary Prospectus, ~~any Issuer Free Writing~~ the Effective Prospectus or the ~~Prospectus~~Final Prospectus or suspending the qualification of the Shares for offering or sale in any jurisdiction, or of the institution of any proceedings for ~~that purpose or pursuant to Section 8A of~~ any such purpose; and the ~~Act. The~~ Company ~~will~~ shall use its best efforts to prevent the issuance of any stop order or other such order ~~and~~ and, should a stop order or other such order be issued, to obtain as soon as possible the lifting thereof~~, if issued~~. (vii) The Company will ~~cooperate with the Representatives in endeavoring~~ take or cause to ~~qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents,~~ be taken all necessary action and furnish to whomever you direct such information as may be reasonably required in qualifying the Shares for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters may designate provided, however, that ~~purpose, provided~~ the Company shall not be ~~required~~ obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or take any action that would subject the Company to ~~file a~~ general ~~consent to~~ service of process in any jurisdiction where it is would not ~~now~~ be so ~~qualified or required to file such a consent~~subject as of the date of this Agreement. ~~The~~ In each jurisdiction in which the Shares have been so qualified, the Company ~~will, from time to time, prepare~~ will make and file such ~~statements, reports,~~ statements and ~~other documents,~~ reports as are ~~or may be~~ required by the laws of such jurisdiction to continue such qualifications in effect for so as long ~~a period~~ as may be reasonably necessary to complete the ~~Representatives may reasonably request for~~ distribution ~~of the Shares~~in such jurisdictions. (viiii) ~~The Company will deliver to, or upon~~ Within the ~~order of~~time during which a Final Prospectus relating to the Shares is required to be delivered under the Securities Act, the ~~Representatives, from time to time, as many copies of any Preliminary Prospectus as~~ Company shall comply with all requirements imposed upon it by the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Securities Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement now and ~~all amendments thereto including all exhibits filed therewith~~hereafter amended, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by ~~reference therein, and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and~~ the Rules and Regulations, ~~and the Exchange Act, and the rules and regulations of the Commission thereunder~~as from time to time in force, so far as is necessary to permit the ~~completion~~ continuance of ~~the distribution~~ sales of or dealings in the Shares as contemplated ~~in this Agreement~~ by the provisions hereof and the Final Prospectus. If during ~~the~~ such period ~~in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer,~~ any event ~~shall occur~~ occurs as a result of ~~which, in~~ which the ~~judgment~~ Final Prospectus as then amended or supplemented would include an untrue statement of ~~the Company~~ a material fact or ~~in the reasonable opinion of the Underwriters, it becomes~~ omit to state a material fact necessary ~~to amend or supplement the Prospectus in order~~ to make the statements therein, in the light of the circumstances ~~existing at the time the Prospectus is delivered to a purchaser~~then existing, not misleading, ~~or,~~ or if during such period it is necessary ~~at any time~~ to amend ~~or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to~~ the Registration Statement or supplement the Final Prospectus to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the ~~law~~Securities Act, the Company shall promptly notify you and shall amend the Registration Statement or supplement the Final Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixiv) The Company will furnish without charge to the Representatives and make ~~generally~~ available to ~~its security holders~~the Underwriters copies of the Registration Statement (three of which shall be signed and shall be accompanied by all exhibits, ~~as soon as it is practicable to do so~~each Preliminary Prospectus, ~~but in~~ the Effective Prospectus and the Final Prospectus, and all amendments and supplements thereto, including any ~~event not later than 15 months~~ prospectus or supplement prepared after the effective date of the Registration Statement, in each case as soon as available and in such quantities as the Underwriters may reasonably request. (v) The Company will (A) deliver to you at such office or offices as you may designate as many copies of the Preliminary Prospectus and Final Prospectus as you may reasonably request, and (B) for such period as prospectuses are required to be delivered, send to the Underwriters as many additional copies of the Final Prospectus and any supplement thereto as you may reasonably request. (vi) The Company shall make generally available to its security holders, in the manner contemplated by Rule 158(b) under the Securities Act as promptly as practicable and in any event no later than 90 days after the end of its fiscal quarter in which the first anniversary of the effective date of the Registration Statement occurs, an earnings statement ~~(which need not be audited~~satisfying the provisions of Section 11(a) ~~in reasonable detail,~~ of the Securities Act covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement~~, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available~~. (xvii) ~~Prior to~~ The Company will apply the ~~Closing Date~~net proceeds from the sale of the Shares as set forth under the caption "Use of Proceeds" in the Final Prospectus. (viii) During a period of five years from the effective date of the Registration Statement or such longer period as the Underwriters may reasonably request, the Company will furnish to the ~~Underwriters~~Representatives copies of all reports and other communications (financial or other) furnished by the Company to its stockholders and, as soon as ~~they have been prepared by or are available to the Company~~available, ~~a copy~~ copies of any ~~unaudited interim~~ reports or financial statements furnished or filed by the Company to or with the Commission or any national securities exchange on which any class of securities of the Company ~~for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus~~may be listed. (xiix) ~~No offering~~The Company will, from time to time, after the effective date of the Registration Statement file with the Commission such reports as are required by the Securities Act and the Exchange Act, and with state securities commissions in states where the Shares have been sold by you (as you shall have advised the Company in writing) such reports as are required to be filed by the securities acts and the regulations of those states. (x) Except pursuant to this Agreement, in connection with an acquisition by the Company made in the ordinary course of business in which restricted securities are issued as consideration by the Company or with the written consent of J.C. Xxxxxxxx & Xo., L.L.C., for a period of 90 days from the date of the Final Prospectus, the Company agrees that it will not, and the Company has provided agreements executed by each of the existing stockholders of the Company providing that for a period of 90 days from the date of the Final Prospectus such person or entity will not, offer for sale, ~~pledge, contract to~~ sell (~~including any short sale~~other than pursuant to the exercise of options granted pursuant to existing employee benefit plans and agreements, other existing compensation agreements and existing stock options), grant any ~~option~~ options (other than pursuant to ~~purchase~~ existing employee benefit plans and agreements, other compensation agreements and existing stock options), rights or warrants with respect to any shares of Common Stock, securities convertible into common stock or any other capital stock of the Company, or otherwise dispose of of, directly or indirectly, any shares of Common Stock or ~~enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly~~ such other securities or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitioncapital stock. (~~xii~~xi) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of Neither the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or nor any of ~~the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company~~ its subsidiaries nor any of their directors, officers or affiliates will ~~maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not~~ take, directly or indirectly, any action designed to cause or result in, or ~~that has constituted~~ which might constitute or ~~might reasonably~~ be expected to constitute, ~~the~~ stabilization or manipulation of the price of ~~any securities of~~ the ~~Company~~Common Stock. (b) Each of the Selling Shareholders covenants and agrees with the ~~several~~ Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or ~~that has constituted~~ which might constitute or ~~might reasonably~~ be expected to constitute, ~~the~~ stabilization or manipulation of the price of ~~any securities of~~ the ~~Company~~Common Stock. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Res Care Inc /Ky/)

Covenants of the Company and the Selling Shareholders. (aA) The Company covenants ~~and agrees~~ with ~~the several Underwriters that~~each Underwriter as follows: (ia) ~~The Company will~~ To file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A under the Securities Act. (Ab) ~~prepare~~ To furnish to the Representatives, without charge, five signed copies of each of the Registration Statement, the ADS Registration Statement and ~~timely~~ the Exchange Act Registration Statement (including in each case the exhibits thereto) and for delivery to each other Underwriter a conformed copy of each of the Registration Statement, the ADS Registration Statement and the Exchange Act Registration Statement (without exhibits thereto) and to furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(A)(g) or 7(A)(h) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request. (c) Before amending or supplementing the Registration Statement, the ADS Registration Statement, the Exchange Act Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the Commission ~~under~~ within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. (d) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object. (e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a ~~Prospectus~~ free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (f) To advise the Representatives promptly and confirming such advice in ~~a form approved~~ writing, of any request by the ~~Representatives containing~~ Commission for amendments or supplements to the Registration Statement, the ADS Registration Statement, the Exchange Act Registration Statement, any Time of Sale Prospectus, Prospectus or free writing prospectus or for additional information ~~previously omitted at~~ with respect thereto, or of notice of institution of proceedings for, or the ~~time~~ entry of a stop order, suspending the effectiveness of the Registration Statement ~~in reliance on Rules 430A~~or the ADS Registration Statement and, ~~430B or 430C under~~ if the ~~Act, (B) not file any amendment to~~ Commission should enter a stop order suspending the effectiveness of the Registration Statement or ~~distribute an amendment~~ the ADS Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible. (g) If the Time of Sale Prospectus is being used to solicit offers to buy the ADSs at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the ~~General Disclosure Package~~ statements therein, in the light of the circumstances, not misleading, or ~~the Prospectus~~ if any event shall occur or ~~document incorporated by reference therein~~ condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law. (h) If, during such period after the first date of the public offering of the ADSs as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives ~~shall not previously~~ will furnish to the Company) to which ADSs may have been ~~advised~~ sold by the Representatives on behalf of the Underwriters and ~~furnished~~ to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with ~~a copy~~ applicable law. (i) To endeavor to qualify the Shares and the corresponding ADSs for offer and sale under the securities or ~~to which~~ Blue Sky laws of such jurisdictions as the Representatives shall ~~have~~ reasonably ~~objected in writing or which is not in compliance~~ request. (j) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earning statement covering a period of at least twelve months beginning with the ~~Rules~~ first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and ~~Regulations~~ the rules and regulations of the Commission thereunder. (Ck) During the period when the Prospectus is required to be delivered under the Securities Act, to file ~~on a timely basis~~ all ~~reports and any definitive proxy or information statements~~ documents required to be filed ~~by the Company~~ with the Commission ~~subsequent~~ pursuant to the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Commission thereunder; during the five-year period after the date of this Agreement, to furnish to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and to furnish to the Representatives (i) as soon as available, a copy of each report of the Company filed with or furnished to the Commission under the Exchange Act or mailed to shareholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its XXXXX reporting system, it is not required to furnish such reports or statements filed through XXXXX to the Underwriters. (l) To apply the net proceeds to the Company from the sale of the ADSs in the manner set forth under the heading “Use of Proceeds” in the Time of Sale Prospectus and to file such reports with the Commission with respect to the sale of the ADSs and the application of the proceeds therefrom as may be required by Rule 463 under the Securities Act; not to use, and to cause the Subsidiaries not to use, the proceeds from the sale of the ADSs, directly or indirectly, for any purpose or activity that would cause the Company, the Underwriters or any purchaser of the ADSs to be in violation of the Trading with the Enemy Act, as amended, the International Emergency Economic Powers Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, or in connection with business, operations or contracts with any government or any person or entity that is subject to sanctions under any program administered by OFAC. (m) Not to, and to cause the Subsidiaries not to, take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or the ADSs. (n) To use its best efforts to comply with, and to cause its directors and officers to comply with, the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder. (o) To comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Directed ADSs are offered in connection with the Directed Share Program. (p) In connection with the Directed Share Program, to ensure that the Directed ADSs will be restricted to the extent required by the NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the ~~Prospectus~~ effectiveness of the Registration Statement (it being understood that the Representatives will notify the Company as to which Participants will need to be so restricted); and ~~prior~~ to direct the ~~termination~~ transfer agent to place stop transfer restrictions upon such securities for such period of time. (q) To pay all fees and disbursements of counsel (including non-U.S. counsel) incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. (r) To comply with the terms of the Deposit Agreement so that the ADRs evidencing the ADSs will be executed by the Depositary and delivered to each Underwriter’s participant account in DTC, pursuant to this Agreement on the Closing Date and the applicable Option Closing Date. (s) (i) Not to attempt to avoid any judgment obtained by it or denied to it in a court of competent jurisdiction outside the Cayman Islands; (ii) following the consummation of the offering of the ~~Shares~~ ADSs, to use its best efforts to obtain and maintain all approvals required in the Cayman Islands to pay and remit outside the Cayman Islands all dividends declared by the ~~Underwriters~~Company and payable on the Ordinary Shares; and (iii) to use its best efforts to obtain and maintain all approvals required in the Cayman Islands for the Company to acquire sufficient foreign exchange for the payment of dividends and all other relevant purposes. (iit) ~~The~~ To comply with the SAFE Rules and Regulations, and to use its best efforts to cause its shareholders that are, or that are directly or indirectly owned or controlled by, Chinese residents or Chinese citizens, to comply with the SAFE Rules and Regulations applicable to them, including, without limitation, requesting each such shareholder to complete any registration and other procedures required under applicable SAFE Rules and Regulations. (u) To use its best efforts to do and perform all things required to be done or performed under this Agreement by the Company ~~will (i) not make any offer relating~~ prior to the ~~Shares that would constitute an Issuer Free Writing Prospectus~~ Closing Date or ~~that would otherwise constitute~~ each Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Firm ADSs and the Additional ADSs. (v) To cause each option holder of the Company who has not entered into a “lock-up” agreement contemplated in Section 6(q) to be subject to and comply with all of the restrictions set forth in such “lock-up” agreement, including (A) delivering notices with respect to such restrictions to all such option holders immediately upon closing of the offering and (B) including a legend with respect to such restrictions on the certificates evidencing the Ordinary Shares to be issued to any such option holder upon exercise of the options during the 180-day period after the date of the Prospectus; and to enter into the Depositary Letter with the Depositary, and not to release the Depositary from any of its obligations set forth in, or otherwise amend, terminate or fail to enforce, the Depositary Letter during the 180-day period after the date of the Prospectus. (B) Each Selling Shareholder, in addition to its other agreements and obligations hereunder, severally and not jointly, covenants with each Underwriter as follows: (a) Such Selling Shareholder will not prepare, or have prepared on its behalf, or use or refer to, any free writing prospectus~~” (as defined~~ , nor will it distribute any written materials in ~~Rule 405 under the Act) required to be filed by the Company~~ connection with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent offer or sale of the ~~Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es~~ADSs. (b) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) Such Selling Shareholder will not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of ~~such~~ the Underwriter that ~~such~~ the Underwriter otherwise would not have been required to file thereunder~~. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show~~. (~~iii~~c) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during During the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Securities Act~~) (the “Prospectus Delivery Period”~~) is required under the Securities Act, ~~as many copies of~~ such Selling Shareholder will advise the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewithUnderwriters promptly, and will ~~deliver to the Representatives~~ confirm such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you advice in writing ~~when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish~~ to the Underwriters, ~~as soon as they have been prepared by or are available to the Company, a copy~~ of any ~~unaudited interim financial statements of~~ change in the ~~Company for any period subsequent~~ information relating to ~~the period covered by the most recent financial statements appearing~~ such Selling Shareholder in the Registration Statement, the ~~General Disclosure Package and~~ Time of Sale Prospectus or the Prospectus. (xid) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Such Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company Shareholder will not take, directly or indirectly, any action designed to ~~cause or result in,~~ or that ~~has constituted~~ would constitute or that might reasonably be expected to ~~constitute,~~ cause or result in the stabilization or manipulation of the price of any ~~securities~~ security of the ~~Company~~Company to facilitate the sale or resale of the Shares or the ADSs. (be) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to ~~you~~ the Representatives prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or ~~W-9~~ Form W-9, as applicable (or other applicable form or statement specified by United States Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Perfect World Co., Ltd.)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the ~~Representatives~~ Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules ~~430A, 430B or 430C~~ 430A under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the ~~Representatives~~ Representative shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (iA) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the ~~Representatives approve~~ Representative approves its use in writing prior to first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the ~~Representatives~~ Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV hereto, (iiB) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (~~iii~~C) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (ivD) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~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 Securities within the meaning of the Act and (B) completion of the 90-day restricted period referred to in Section 4(a)(xiii) hereof. (iv) The Company will advise the ~~Representatives~~ Representative as promptly as practicable (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as ~~possible~~ practicable the lifting thereof, if issued. (v) The Company will cooperate with the ~~Representatives~~ Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (A) qualify as a foreign ~~corporation or to~~ corporation, (B) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (C) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Representative may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Issuer Free Writing Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~ Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Representative may reasonably request. ~~The~~ If requested, the Company will deliver to the ~~Representatives~~ Representative at or before the Closing Date, ~~four~~ two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the ~~Representatives~~ Representative may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to ~~the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) ~~in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy~~ satisfying the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any ~~shares~~ Ordinary Shares or other securities convertible into or exchangeable or exercisable for Ordinary Shares or derivative of ~~Common Stock~~ Ordinary Shares (or ~~enter into any Hedging Transaction (as defined in Exhibit A hereto~~agreement for such) ~~relating to the Common Stock of the Company~~ will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ the Representative. The restrictions contained in the foregoing sentence shall not apply to (A) ~~with respect~~ the issuance of Ordinary Shares upon exercise, conversion, settlement or vesting of any outstanding warrants, stock options, restricted stock units or other derivative security or stock-based award granted pursuant to ~~Shares to be sold hereunder~~the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (B) the issuance of Ordinary Shares, or options to purchase Ordinary Shares, or the grant by of other equity-based awards (including any securities convertible into Ordinary Shares), to employees, officers, directors, advisors or consultants of the Company ~~of stock options, restricted stock or other awards~~ pursuant to the Company’s equity incentive and employee benefit plans ~~as described~~ (including employee stock purchase plans) disclosed in the Prospectus~~; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period~~, (C) the ~~issuance by~~ filing of a registration statement on Form S-8 for the ~~Company~~ registration of ~~shares of Common Stock upon~~ Ordinary Shares issued pursuant to the ~~exercise of an option or warrant outstanding on the date hereof~~ Company’s equity incentive and ~~which is described~~ employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (D) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with the acquisition by the Company or any of ~~shares~~ the Subsidiaries of ~~Common Stock~~ the securities, business, properties or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company or any of the Subsidiaries in connection with a any such acquisition, or (E) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with joint ventures, commercial relationships or other strategic ~~partnering transaction~~ transactions; provided that, in the case of clauses (D) and (E) ), the aggregate number of shares issued in ~~exchange for~~ all ~~or substantially all~~ such acquisitions and transactions does not exceed 10% of the ~~equity or assets~~ outstanding Ordinary Shares as of ~~a company in connection with a merger or acquisition~~the date hereof. (~~xii~~xi) The Shares have been approved for listing on the NASDAQ Global Select Market, and the Company will use its best efforts to maintain the listing of the Shares on the ~~New York Stock Exchange~~NASDAQ Global Select Market. (~~xiii~~xii) The Company has caused each executive officer and director ~~and each of the Selling Shareholders~~ of the Company and each Selling Shareholder to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the ~~Common Stock~~Ordinary Shares. (~~xvi~~xiv) The Company will not knowingly take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (~~iii~~ii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iviii) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (viv) During the Prospectus Delivery Period, such Selling Shareholder will advise the ~~Representatives~~ Representative promptly, and will confirm such advice in writing to the ~~Representatives~~Representative, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Ichor Holdings, Ltd.)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters and the Selling Shareholders that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus ~~in a form approved by the Representatives~~ containing information previously omitted at the time of effectiveness of the Registration Statement in ~~reliance on~~ accordance with Rules ~~430A~~430 and 424, ~~430B or 430C under~~ a copy of which has been furnished to the ~~Act,~~ Representative and to which the Representative have not objected in writing prior to filing and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the ~~Representatives~~ Representative shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the ~~Representatives~~ Representative promptly (A~~) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C~~) of any request of the Commission for amendment of the Registration Statement or for a supplement to ~~the General Disclosure Package or~~ the Prospectus or for any additional information~~, and~~ ; (DB) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of~~ purpose, and the ~~Act. The~~ Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued; and (C) within the period of time referred to in paragraph (v) below, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event that makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or that requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the Rules and Regulations to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with Act and the Rules and Regulations or any other law. (viii) The Company will cooperate with the ~~Representatives~~ Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Representative may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Preliminary Prospectus, Prospectus or any amendment or supplement thereto as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives Representative during the period ~~when~~ when, in the opinion of counsel for the Underwriters, delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to the ~~Representatives~~ Representative at or before the Closing Date, four signed copies of the Registration Statement and ~~all amendments thereto~~ each amendment thereto, including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Representative such number of copies of the Registration ~~Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested)~~Statement, ~~including documents incorporated by reference therein~~but without exhibits, and of all amendments thereto, as the ~~Representatives~~ Representative may reasonably request. (~~vii~~v) The Company will comply to the best of its ability with the Act and the Rules and ~~Regulations,~~ Regulations and the Exchange Act~~, and the rules and regulations of the Commission thereunder~~, so as to permit the completion of the distribution of the ~~Shares~~ shares as contemplated in by this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or ~~dealer,~~ dealer any event shall occur as a result of which, in the judgment of the Company or in the ~~reasonable opinion of the Underwriters~~Representative, it becomes necessary to amend or supplement the Prospectus or the Registration Statement in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the ~~Prospectus or (ii) prepare and file with~~ Prospectus, reasonably acceptable to the ~~Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus~~ Representative, so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with ~~the law~~all applicable laws, rules and regulations. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement ~~(which need not be audited)~~ in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representative copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act, as ~~soon as they have been prepared by or are available~~ amended. The Company will deliver to the ~~Company~~Representative similar reports with respect to significant subsidiaries, ~~a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing~~ as that term is defined in the ~~Registration Statement~~Rules and Regulations, which are not consolidated in the ~~General Disclosure Package and the Prospectus~~Company's financial statements. (xiviii) No offering, ~~sale, pledge, contract to sell (including any short sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any ~~shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ Common Stock of the Company will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representative, except ~~(A) with respect to Shares to be sold hereunder, (B) the grant by~~ that the Company ~~of stock options~~may, ~~restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that~~ without such ~~options~~consent, ~~restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of~~ issue shares ~~of Common Stock~~ upon the exercise of ~~an option or warrant~~ options outstanding on the date ~~hereof and which is described in the Prospectus, (D) the issuance by the Company~~ of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionthis Agreement. (~~xii~~ix) The Company will use its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Company prior to the Closing Date or the Option Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Shares. (x) The Company has not taken, nor will it take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Stock. (xi) The Company will maintain a transfer agent and, if necessary under the ~~listing~~ jurisdiction of its incorporation or required for NASDAQ designation, a registrar for its Common Stock. (xii) The Company shall apply the net proceeds of the sale of the Shares on as set forth in the ~~New York Stock Exchange~~Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xiii) The Company ~~has caused each officer and director and each~~ shall not invest or otherwise use the proceeds received by the Company from the sale of the ~~Selling Shareholders of~~ shares to the Underwriters in such manner as would require the Company to ~~furnish to you, on or prior to~~ register as an investment company under the ~~date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”)~~1940 Act. (xiv) The Company shall apply the net proceeds of the sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xv) The Company shall not invest, or otherwise use the proceeds received by the Company from ~~its~~ the sale of the ~~Shares~~ shares to the Underwriters in such a manner as would require the Company ~~or any of the Subsidiaries~~ to register as an investment company under the ~~1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock~~0000 Xxx. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the ~~Company~~Company to facilitate the sale or resale of the Shares. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters and the Company that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form ~~W-8 or~~ W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (ii) Such Selling Shareholder will cooperate to the extent reasonably necessary to cause the Registration Statement or any post-effective amendment thereto to become effective at the earliest possible time. (iii) Such Selling Shareholder will advise you promptly, and if requested by you, will confirm such advice in writing, within the period of time referred to in Section 4(a)(v) hereof, of any change in the Company's condition (financial or other), business, prospects, properties, net worth or results of operations or of any change in information relating to such Selling Shareholder or the Company or any new information relating to the Company or relating to any matter stated in the Prospectus or any amendment or supplement thereto which comes to the attention of such Selling Shareholder that suggests that any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) is or may be untrue in any material respect or that the Registration Statement or Prospectus (as then amended or supplemented) omits or may omit to state a material fact or a fact necessary to be stated therein in order to make the statements therein not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) in order to comply with the Act or any other law. (iv) Such Selling Shareholder will (A) do or perform all things reasonably required to be done or performed by the Selling Shareholder prior to the Closing Date or the Option Closing Date, as the case may be, to satisfy all conditions precedent to the delivery of his, her or its Shares pursuant to this Agreement; (B) not take, directly or indirectly, any action designed to ~~cause or result in,~~ or that ~~has constituted or~~ might reasonably be expected to ~~constitute, the~~ cause or result in stabilization or manipulation of the price of ~~any securities of~~ the Company~~. (iv) Such Selling Shareholder agrees that it will not prepare~~ 's Common Stock to facilitate the sale or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale resale of the Shares. ; and (vC) ~~During~~ pay all federal and other taxes, if any, on the ~~Prospectus Delivery Period, such Selling Shareholder will advise~~ transfer of the ~~Representatives promptly, and will confirm such advice in writing~~ sale of Shares being sold by it to the ~~Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package~~Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Elcom Technologies Corp)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company ~~will~~ (A) ~~prepare~~ has filed the Statutory Prospectus and ~~timely~~ will file ~~with~~ the ~~Commission under Rule 424(b) under the Act a Prospectus~~ Prospectus, in a form approved by the ~~Representatives containing information previously omitted at~~ Representatives, with the ~~time of effectiveness~~ Commission pursuant to and in accordance with Rule 424(b) not later than the second business day following the earlier of the ~~Registration Statement in reliance on Rules 430A, 430B~~ date such Statutory Prospectus or ~~430C under~~ Prospectus is first used or the ~~Act~~date of the execution and delivery of this Agreement, (B) will not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (iA) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV hereto, (iiB) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (~~iii~~C) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (ivD) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~The Company will promptly notify the 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 Securities within the meaning of the Act and (B) completion of the 90-day restricted period referred to in Section 4(a)(x) hereof. (iv) The Company will advise the Representatives as promptly as practicable (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus, any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event or development within the Prospectus Delivery Period (as defined below) as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as ~~possible~~ practicable the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (A) qualify as a foreign ~~corporation or to~~ corporation, (B) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (C) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. ~~The~~ If requested, the Company will deliver to the Representatives at or before the Closing Date, ~~four~~ two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested~~), including documents incorporated by reference therein,~~ ) and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement or Preliminary Prospectus then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to ~~the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) ~~in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy~~ satisfying the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any ~~shares of Common Stock~~ Ordinary Shares or ~~enter~~ other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ or exchangeable or exercisable for Ordinary Shares or derivative of the ~~Company~~ Ordinary Shares (or agreement for such) will be made for a period of 90 45 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ the Representatives. The restrictions contained in this Section 4(a)(x) shall not apply to: (~~A) with respect to Shares to be sold hereunder, (B~~1) the ~~grant by the Company~~ issuance of ~~stock~~ Ordinary Shares upon exercise, conversion, settlement or vesting of any outstanding warrants, share options, restricted ~~stock~~ share units or other derivative securities or share-based awards granted pursuant to the Company’s equity incentive and employee benefit plans ~~as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period,~~ (Cincluding employee share purchase plans) ~~the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described~~ disclosed in the Prospectus, (D2) the issuance of Ordinary Shares, or the issuance of options to purchase Ordinary Shares, or the grant of other equity-based awards (including any securities convertible into Ordinary Shares), pursuant to the Company’s equity incentive and employee benefit plans (including employee share purchase plans) disclosed in the Prospectus, (3) the filing of any registration statement on Form S-8 with respect to the Company’s equity incentive and employee benefit plans (including employee share purchase plans) disclosed in the Prospectus, (4) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with the acquisition by the Company or any of ~~shares~~ the Subsidiaries of ~~Common Stock~~ the securities, business, properties or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company or any of the Subsidiaries in connection with ~~a strategic partnering transaction and~~ any such acquisition, or (E5) ~~in exchange~~ the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for ~~all~~ Ordinary Shares or ~~substantially all of the equity or assets of a company~~ other securities) in connection with joint ventures, commercial relationships or other strategic transactions; provided that, in the case of clauses (4) and (5) above, (Y) the aggregate number of securities issued in all such acquisitions and transactions does not exceed 10% of the outstanding Ordinary Shares following the issuance and sale of the Shares to be sold hereunder and (Z) the Company shall cause each recipient of such securities to execute and deliver to you, on or prior to the issuance of such securities, a ~~merger or acquisition~~lock-up letter as described in Section 4(a)(xii) (and with the same date of expiration). (~~xii~~xi) The Company will use its reasonable best efforts to maintain the listing of the Shares on the ~~New York Stock Exchange~~NASDAQ Global Select Market. (~~xiii~~xii) The Company has caused each executive officer and director and each ~~of the~~ Selling ~~Shareholders of the Company~~ Shareholder to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the ~~Common Stock~~Ordinary Shares. (~~xvi~~xiv) The Company will not knowingly take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (xv) The Company will not provide any financial accommodation or pay any expenses in respect of, related to or otherwise in connection with, the sale of the Shares in the offering pursuant to this Agreement, any registration rights agreement or any other agreement in respect of, related to, or otherwise made in connection with, the offering. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each Each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (~~iii~~ii) Such Selling Shareholder will not knowingly take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iviii) Such Selling Shareholder ~~agrees that it~~ will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), ) and ~~agrees that it~~ will not distribute any written materials in connection with the offer or sale of the Shares. (viv) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the ~~information relating to such~~ Selling Shareholder Information. (v) Such Selling Shareholder will not request, demand or otherwise take any action designed to cause or result in the ~~Registration Statement~~financial accommodation or payment by the Company of any expenses in respect of, related to or otherwise in connection with, the ~~Prospectus~~ sale of the Shares in the offering pursuant to this Agreement, any registration rights agreement or any ~~document comprising~~ other agreement in respect of, related to, or otherwise made in connection with, the ~~General Disclosure Package~~offering.

Appears in 1 contract

Samples: Equity Underwriting Agreement (SunEdison Semiconductor LTD)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date Rule 430A of the ~~Prospectus and prior to the termination of the offering of the Shares by the Underwriters.~~Rules (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order or proceeding and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Exchange Act and the Rules and ~~Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder,~~ Regulations so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law 13 to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such earnings statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange or The Nasdaq Stock Market pursuant to the ~~Underwriters~~requirements of such exchange or The Nasdaq Stock Market or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing that term is defined in the ~~Registration Statement~~Rules and Regulations, which are not consolidated in the ~~General Disclosure Package and the Prospectus~~Financial Statements. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short sale), ~~grant any option to purchase~~ pledge or ~~otherwise dispose~~ other disposition of any shares of Common Stock of the Company or ~~enter~~ other capital stock of the Company, or other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ or exchangeable or exercisable for shares of Common Stock or derivatives of Common Stock of the Company (or entering into agreements for such) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder except (A) that the Company may issue, and grant options or warrants to purchase, shares of Common Stock of the Company or any shares convertible into, exercisable for or exchangeable for shares of Common Stock of the Company, upon the exercise of outstanding options and warrants and its issuance of options and stock granted under the existing stock option plan, (B) in connection with acquisition transactions, or (C) with the prior written consent of ~~at least~~ Deutsche ~~Bank Securities Inc. or Xxxxxx Brothers Inc.~~Banc Alex. Browx, except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionXxc. (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ promptly list, subject to notice of issuance, the Shares on ~~the New York Stock Exchange~~The Nasdaq National Market. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Mobile Mini Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the ~~Act,~~ Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV C hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~The Company will promptly notify the 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 Securities within the meaning of the Act and (b) completion of the 180-day restricted period referred to in Section 4(xiii) hereof. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional ~~information, and~~ information or (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (x) qualify as a foreign ~~corporation or to~~ corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.reasonably

Appears in 1 contract

Samples: Equity Underwriting Agreement (Paylocity Holding Corp)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved (which approval shall not be unreasonably withheld or delayed) by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act,~~ and Regulations and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter~~ other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ or exchangeable or exercisable for shares of Common Stock or derivative of ~~the Company~~ Common Stock (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ BT Alex. Xxxxx Incorporated. The foregoing sentence shall not apply to (A) ~~with respect to~~ the Shares to be sold ~~hereunder~~to the Underwriters pursuant to this Agreement, (B) ~~the grant~~ shares of Common Stock issued by the Company upon the exercise of options granted under the stock ~~options, restricted stock or other awards pursuant to~~ options plans of the ~~Company’s benefit plans~~ Company (the "Options Plans") all as described in footnote 1 to the table under the caption "Capitalization" in the Prospectus~~; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period~~, (C) the ~~issuance by~~ grant of options to purchase Common Stock under the ~~Company of~~ Option Plans, and (D) shares of Common Stock ~~upon the exercise of an option~~ or ~~warrant outstanding on the date hereof and which is described in the Prospectus~~securities convertible into, ~~(D) the issuance by the Company of~~ or exercisable for, shares of Common Stock ~~in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition~~pursuant to an acquisition transaction. (~~xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii~~ix) The Company has caused each officer and director ~~and each of the Selling Shareholders~~ of the Company and certain stockholders (Xxx Xxxxxxx, the entities affiliated with the Xxxx Family Trusts and Gotel Investment, Ltd.) to furnish to you, on or prior to the date of this ~~agreement~~Agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 90 days, and in certain cases, for a period of 45 days, after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx Incorporated (~~the “~~"Lockup ~~Agreement”~~Agreements"). (~~xiv~~x) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus. (xi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ~~1940 Act~~0000 Xxx. (xvxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company, provided that the actions of any of the Underwriters in that regard shall not be deemed actions of the Company. (b) ~~Each~~ The Selling Shareholder and subject to the exercise of the Underwriters' Option, each of the Additional Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter into any Hedging Transaction relating to the Common Stock~~ other capital stock of the Company ~~will be made~~ or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Xxxxx Incorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Option Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock, provided that the actions of any ~~securities~~ of the ~~Company. (iv) Such Selling Shareholder agrees~~ Underwriters in that ~~it will~~ regard shall not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale be deemed actions of ~~the Shares. (v) During the Prospectus Delivery Period,~~ such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure PackageShareholder.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Star Telecommunications Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the ~~Act,~~ Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV C hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~The Company will promptly notify the 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 Securities within the meaning of the Act and (b) completion of the 90-day restricted period referred to in Section 4(xi) hereof. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional ~~information, and~~ information or (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (x) qualify as a foreign ~~corporation or to~~ corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange ~~Act,~~ Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with lawPackage. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act ~~and~~ (including, at the option of the Company, Rule ~~158 under the Act and will advise you in writing when such statement has been so made available~~158). (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives, in each case except for (A) ~~with respect to~~ the Shares to be sold hereunder, (B) ~~the grant by~~ any shares of Common Stock of the Company issued upon the exercise of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day periodoptions granted under Company equity incentive plans, (C) any shares of Common Stock issued upon conversion of the Company’s outstanding preferred stock and (D) the entry into an agreement providing for the issuance by the Company of shares of Common Stock ~~upon the exercise of an option~~ or ~~warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of~~ any security convertible into or exercisable for shares of Common Stock in connection with ~~a strategic partnering transaction and (E) in exchange for all~~ the bona fide acquisition by the Company or ~~substantially all~~ any of its subsidiaries of the ~~equity~~ securities, business, property or other assets of another person or entity, provided, however, that each recipient of shares of Common Stock or securities convertible into or exercisable for Common Stock pursuant to clause (D) shall execute a ~~company in connection with a merger or acquisition~~Lockup Agreement (as defined below), and provided further, that such issuance does not exceed 10% of the Company’s fully diluted capital stock following completion of the transactions contemplated by this Agreement. (xii) The Company will use its best efforts to ~~maintain~~ list the ~~listing~~ Shares, subject to notice of ~~the Shares~~ issuance, for quotation on the ~~New York Stock Exchange~~NASDAQ Global Select Market. (xiii) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ~~1940 Act~~0000 Xxx. (xvxviii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xviv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Paylocity Holding Corp)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act~~and Regulations, (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and ~~any definitive proxy or information~~ statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of ~~receipt of any comments from the Commission, (C) of~~ any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (DC) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A~~ purpose. In the event of the ~~Act. The~~ issuance of any stop order preventing or suspending the use of the Prospectus, the Company will use its best efforts ~~to prevent the issuance of any such order and~~ to obtain as soon as possible the lifting thereof~~, if issued~~. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four ~~signed~~ conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such additional number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its ~~security holders~~stockholders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as ~~soon as they have been prepared by or~~ that term is defined in the Rules and Regulations, which are ~~available to~~ not consolidated in the Company~~, a copy of any unaudited interim~~ 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectusstatements. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company ~~otherwise than hereunder or~~ except with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ BT Alex. Xxxxx Incorporated. The foregoing sentence shall not apply to (A) ~~with respect to~~ the Shares to be sold ~~hereunder~~to the Underwriters pursuant to this Agreement, (B) ~~the grant~~ shares of Common Stock issued by the Company upon the exercise of options granted under the stock ~~options, restricted stock~~ option plans of the Company (the "Option Plans") or ~~other awards pursuant to~~ upon the ~~Company’s benefit plans~~ exercise of warrants outstanding as ~~described in~~ of the ~~Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period~~date hereof, (C) options to purchase Common Stock granted under the ~~issuance by the Company of~~ Option Plans and (D) shares of Common Stock ~~upon the exercise of an option~~ or ~~warrant outstanding on the date hereof and which is described~~ options or warrants to purchase Common Stock issued or granted in ~~the Prospectus~~connection with equipment lease financing arrangements, ~~(D) the issuance~~ credit agreements or other commercial transactions or corporate strategic partner transactions approved by the ~~Company~~ Company's Board of Directors. (ix) Each officer and director (and entities affiliated with directors) of the Company, and each Selling Shareholder and beneficial owner of more than __% of the Company's Common Stock has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person (or as to ~~furnish~~ which such person has the right to ~~you, on or prior to~~ direct the disposition of) for a period of 90 days after the date of this ~~agreement~~Agreement, ~~a letter~~ directly or ~~letters~~indirectly, ~~substantially in~~ except with the ~~form attached hereto as Exhibit A~~ prior written consent of the Company or BT Alex. Xxxxx Incorporated (~~the “~~"Lockup ~~Agreement”~~Agreements"). (~~xiv~~x) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the Investment Company Act of 1940, as amended (the "1940 Act"). (xvxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementAlex. Xxxxx & Sons Incorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Terayon Communication Systems)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the ~~Representatives~~ Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules ~~430A, 430B or 430C~~ 430A under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the ~~Representatives~~ Representative shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the ~~Representatives approve~~ Representative approves its use in writing prior to first use (such approval not to be unreasonably withheld) (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the ~~Representatives~~ Representative hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~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 Securities within the meaning of the Act and (b) completion of the 180-day restricted period referred to in Section 4(a)(xiii) hereof. (iv) The Company will advise the ~~Representatives~~ Representative as promptly as practicable (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as ~~possible~~ practicable the lifting thereof, if issued. (v) The Company will cooperate with the ~~Representatives~~ Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (x) qualify as a foreign ~~corporation or to~~ corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Representative may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Issuer Free Writing Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~ Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Representative may reasonably request. ~~The~~ If requested, the Company will deliver to the ~~Representatives~~ Representative at or before the Closing Date, ~~four~~ two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Representative such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the ~~Representatives~~ Representative may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company as promptly as practicable will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to ~~the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) ~~in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy~~ satisfying the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) ~~Prior~~ 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 ~~Closing Date~~statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will ~~furnish~~ as promptly as practicable notify the Representative and will as promptly as practicable amend or supplement, at its own expense, such Written Testing-the-Waters Communication to ~~the Underwriters, as soon as they have been prepared by~~ eliminate or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectuscorrect such untrue statement or omission. (xi) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any ~~shares~~ Ordinary Shares or other securities convertible into or exchangeable or exercisable for Ordinary Shares or derivative of ~~Common Stock~~ Ordinary Shares (or ~~enter into any Hedging Transaction (as defined in Exhibit A hereto~~agreement for such) ~~relating to the Common Stock of the Company~~ will be made for a period of 90 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ the Representative. The restrictions contained in the foregoing sentence shall not apply to (A) ~~with respect to~~ the sale and issuance of the Shares to be sold hereunder, (B) the ~~grant by the Company~~ issuance of Ordinary Shares upon exercise, conversion, settlement or vesting of any outstanding warrants, stock options, restricted stock units or other ~~awards~~ derivative security or stock-based award granted pursuant to the Company’s equity incentive and employee benefit plans ~~as described~~ (including employee stock purchase plans) disclosed in the Prospectus~~; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period~~, (C) the issuance by of Ordinary Shares, or options to purchase Ordinary Shares, or the grant of other equity-based awards (including any securities convertible into Ordinary Shares), to employees, officers, directors, advisors or consultants of the Company pursuant to the Company’s equity incentive and employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus or (D) the filing of ~~shares~~ a registration statement on Form S-8 for the registration of ~~Common Stock upon~~ Ordinary Shares issued pursuant to the ~~exercise of an option or warrant outstanding on the date hereof~~ Company’s equity incentive and ~~which is described~~ employee benefit plans (including employee stock purchase plans) disclosed in the Prospectus, (DE) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with the acquisition by the Company or any of ~~shares~~ the Subsidiaries of ~~Common Stock~~ the securities, business, properties or other assets of another person or entity or pursuant to any employee benefit plan assumed by the Company or any of the Subsidiaries in connection with a any such acquisition, or (F) the issuance of Ordinary Shares or other securities (including securities convertible into or exchangeable or exercisable for Ordinary Shares or other securities) in connection with joint ventures, commercial relationships or other strategic ~~partnering transaction and~~ transactions; provided that, in the case of clauses (E) and (F), the aggregate number of shares issued in ~~exchange for~~ all ~~or substantially all~~ such acquisitions and transactions does not exceed 10% of the ~~equity or assets~~ outstanding Ordinary Shares following the issuance and sale of ~~a company in connection with a merger or acquisition~~the Shares to be sold hereunder. (xii) The Company will use its reasonable best efforts to list the Shares, subject to notice of issuance, for quotation on the NASDAQ Global Select Market and maintain the listing of the Shares on the ~~New York Stock Exchange~~NASDAQ Global Select Market. (xiii) The Company has caused each executive officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a Lockup Agreement for an executive officer or director of the Company and provides the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit B hereto, at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service at least two business days before the effective date of the release or waiver. (xiv) The Company shall ~~not invest, or otherwise use~~ apply the net proceeds ~~received by the Company from~~ of its sale of the Shares ~~in such a manner~~ as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder set forth in the Registration Statement, the ~~Prospectus or any document comprising the~~ General Disclosure ~~Package~~Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Ichor Holdings, Ltd.)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with each of the ~~several Underwriters that~~Underwriters: (i) If the Registration Statement has been declared effective prior to the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to by you, subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the second business day following the execution and delivery of this Agreement or (B) the fifth business day after the date on which the Registration Statement is declared effective. The Company will ~~(A) prepare and timely file with the Commission under~~ advise you promptly of any such filing pursuant to Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters). (ii) The Company will ~~(i)~~ not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company file with the Commission ~~under Rule 433 under~~ the ~~Act~~ Prospectus or the amendment referred to in the second sentence of Section l(a)(i) hereof, any amendment or supplement to the Prospectus or any amendment to the Registration Statement unless you have received a reasonable period of time to review any such proposed amendment or supplement and consented to the ~~Representatives approve~~ filing thereof and will use its ~~use in writing prior~~ best efforts to ~~first use (each, a “Permitted Free Writing Prospectus”); provided that~~ cause any such amendment to the ~~prior written consent~~ Registration Statement to be declared effective as promptly as possible. Upon the request of the Representatives ~~hereto shall be deemed to have been given in respect of~~ or counsel for the ~~Issuer Free Writing Prospectus(es) included in Schedule IV hereto~~Underwriters, ~~(ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with~~ the ~~requirements of Rules 164~~ Company will promptly prepare and ~~433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing~~ file with the Commission, ~~legending~~ in accordance with the rules and ~~record keeping~~ regulations of the Commission, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the several Underwriters and ~~(iv) not take~~ will use its best efforts to cause any ~~action that would result in an Underwriter or~~ such amendment to the Registration Statement to be declared effective as promptly as possible. If required, the Company ~~being required~~ will file any amendment or supplement to ~~file~~ the Prospectus with the Commission ~~pursuant to~~ in the manner and within the time period required by Rule ~~433(d~~424(b) under the ~~Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder~~Act. ~~The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv)~~ The Company will advise the ~~Representatives~~ Representatives, promptly ~~(A)~~ after receiving notice thereof, of the time when the Registration Statement or any ~~post-effective~~ amendment thereto ~~shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement~~ has been filed or ~~for supplement to the General Disclosure Package~~ declared effective or the Prospectus or ~~for~~ any ~~additional information,~~ amendment or supplement thereto has been filed and will provide evidence to the Representatives of each such filing or effectiveness. (Diii) The Company will advise you promptly after receiving notice or obtaining knowledge of (A) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any part thereof or any order preventing or suspending the use of any Preliminary ~~Prospectus, any Issuer Free Writing~~ Prospectus or the ~~Prospectus~~Prospectus or any amendment or supplement thereto, (B) the suspension of the qualification of the Shares for offer or sale in any jurisdiction or of the ~~institution~~ initiation or threatening of any ~~proceedings~~ proceeding for ~~that purpose~~ any such purpose, or ~~pursuant to Section 8A~~ (C) any request made by the Commission or any securities authority of any other jurisdiction for amending the ~~Act~~Registration Statement, for amending or supplementing the Prospectus or for additional information. The Company will use its best efforts to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the withdrawal thereof as promptly as possible. (iv) If at any time when the delivery of a prospectus relating to the Shares is required under the Act any events have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary during such same period to amend or supplement the Prospectus to comply with the Act or the rules and regulations thereunder, the Company will promptly notify you and upon your request (but at the Company's expense) prepare and file with the Commission an amendment or supplement to the Prospectus that corrects such statement or omission or effects such compliance and will furnish without charge to each Underwriter and to ~~obtain~~ any dealer in securities as ~~soon~~ many copies of such amended or supplemented Prospectus as ~~possible~~ you may from time to time reasonably request. If the ~~lifting thereof~~delivery of a prospectus relating to the Shares is required under the Act at any time nine months or more after the date of the Prospectus, ~~if issued~~upon your request but at the expense of such Underwriter, the Company will prepare and deliver to such Underwriter as many copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act. Neither your consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 7. (v) The Company promptly from time to time will ~~cooperate with the Representatives in endeavoring~~ take such action as you may reasonably request to qualify the Shares for offering and sale under the securities or blue sky laws of such jurisdictions as ~~the Representatives~~ you may ~~reasonably have designated in writing~~ request and will ~~make~~ continue such ~~applications, file such documents, and furnish such information~~ qualifications in effect for as long as may be ~~reasonably required for that purpose~~necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation ~~or to file a general consent to service of process~~ in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Sharesjurisdiction. (vi) The Company will ~~deliver to~~promptly provide you, ~~or upon the order of~~without charge, ~~the Representatives, from time to time, as many~~ (A) three manually executed copies of ~~any Preliminary Prospectus~~ the Registration Statement as originally filed with the ~~Representatives may reasonably request. The Company will deliver to~~Commission and of each amendment thereto, ~~or upon~~ including financial statements and all exhibits to the ~~order of~~Registration Statement, (B) for each other Underwriter a conformed copy of the ~~Representatives~~Registration Statement as originally filed and of each amendment thereto, ~~from time~~ without exhibits, and (C) so long as a prospectus relating to ~~time, as many copies of any Issuer Free Writing Prospectus as~~ the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) Shares is required to be delivered under the Act, as many copies of each Preliminary Prospectus or the Prospectus ~~in final form,~~ or any amendment or supplement thereto as ~~thereafter amended or supplemented, as the Representatives~~ you may reasonably request. Prior to the execution and delivery of the Agreement, the Company will have delivered to you, without charge, in such quantities as you have requested, copies of each Preliminary Prospectus. The Company ~~will deliver~~ consents to the ~~Representatives at or before~~ use, in accordance with the ~~Closing Date, four signed copies~~ provisions of the ~~Registration Statement~~ Act and ~~all amendments thereto including all exhibits filed therewith~~with the securities or blue sky laws of the jurisdictions in which the Shares are offered by the several Underwriters and by dealers, ~~and will deliver~~ prior to the ~~Representatives such number of copies~~ date of the ~~Registration Statement (including such number~~ Prospectus, of ~~copies of~~ each Preliminary Prospectus so furnished by the ~~exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request~~Company. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as As soon as ~~it is practicable to do so~~practicable, but in any event not later than ~~15 months~~ the last day of the fifteenth month after the effective date of the Registration Statement, the Company will make generally available to its security holders an earnings statement ~~(which need not be audited) in reasonable detail~~of the Company and its subsidiaries, if any, covering a period of at least 12 ~~consecutive~~ months beginning after the effective date of the Registration ~~Statement,~~ Statement (which ~~earnings statement shall satisfy the requirements of~~ need not be audited) complying with Section 11(a) of the Act and ~~Rule 158 under~~ the ~~Act~~ rules and ~~will advise you in writing when such statement has been so made available~~regulations thereunder. (xviii) ~~Prior to~~ During the ~~Closing Date~~period of 120 days from the date the Registration Statement is declared effective under the Act, the Company will ~~furnish to the Underwriters~~not, ~~as soon as they have been prepared by or are available to the Company~~without your prior written consent, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, saleoffer, pledge, issue, sell, contract to ~~sell (including any short sale)~~sell, grant any option ~~to purchase~~ for the sale of, or otherwise dispose of (or announce any offer, pledge, sale, grant of an option to purchase or other disposition), directly or indirectly, any shares of Common Stock or ~~enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ securities convertible into, exercisable or exchangeable for, shares of Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.Stock, except ~~(A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans~~ as ~~described~~ provided in ~~the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C)~~ Section 2 and except for the issuance ~~by the Company of shares~~ of Common Stock upon the exercise of ~~an option~~ stock options or ~~warrant~~ warrants outstanding on the date ~~hereof and which is described~~ of this Agreement to the extent that the aggregate number of such stock options or warrants are disclosed in the ~~Prospectus~~Prospectus and except for options granted pursuant to the Company's Stock Option Plan for Employees, ~~(D)~~ subject to the ~~issuance by~~ limitation on the ~~Company~~ number of shares of Common Stock issuable thereunder disclosed in ~~connection with a strategic partnering transaction and (E) in exchange for all or substantially all of~~ the ~~equity or assets of a company in connection with a merger or acquisition~~Prospectus. (~~xii~~ix) ~~The~~ During a period of five years from the effective date of the Registration Statement, the Company will ~~use its best efforts~~ furnish to ~~maintain the listing~~ you and, upon request, to each of the ~~Shares on~~ other Underwriters, without charge, (i) copies of all reports or other communications (financial or other) furnished to shareholders, (ii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the ~~New York Stock Exchange~~Commission or any national securities exchange, and (iii) such additional publicly available information concerning the business and financial condition of the Company and its subsidiaries, if any, as you may reasonably request. (~~xiii~~x) ~~The Company has caused each officer and director and each of the Selling Shareholders of~~ Neither the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or nor any of ~~the Subsidiaries to register as an investment company under the 1940 Act.~~ its officers, directors or affiliates will (xvA) ~~The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not~~ take, directly or indirectly, prior to the termination of the underwriting syndicate contemplated by this Agreement, any action designed to cause or to result in, or that ~~has constituted or~~ might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (B) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares or (C) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company. (xi) The Company will apply the net proceeds from the offering in the manner set forth under "Use of Proceeds" in the Prospectus. (xii) The Company will cause the Shares to be listed on the Nasdaq National Market System at each Time of Delivery and for at least one year from the date hereof. (xiii) If at any time during the period beginning on the date the Registration Statement becomes effective and ending on the later of (i) the date 30 days after such effective date and (ii) the date that is the earlier of (A) the date on which the Company first files with the Commission its first Annual Report on Form 10-K after such effective date and (B) the date on which the Company first issues a quarterly financial report to shareholders after such effective date, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your reasonable opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates an amendment of or supplement to the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event. (xiv) The Company confirms that, as of the date hereof, it is in compliance with all provisions of Section 1 of the laws of Florida, Chapter 92-198 ("An Act Relating to Disclosure of Doing Business with Cuba"), and the Company further agrees that if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date the Registration Statement becomes or has become effective with the Commission or with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information, if any, reported in the Prospectus concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Department of notice of such business or change, as appropriate, in a form acceptable to the Department. (b) Each of the Selling ~~Shareholders~~ Shareholders, severally and not jointly, covenants and agrees with each of the ~~several Underwriters that~~Underwriters: (i) ~~No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating~~ Such Selling Shareholder will cooperate to the ~~Common Stock of~~ extent necessary to cause the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase registration statement or any ~~of its incentive plans, in each case, identified in~~ post-effective amendment thereto to become effective at the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreementearliest possible time. (ii) ~~In order~~ Such Selling Shareholder will pay all federal and other taxes, if any, on the transfer or sale of the Shares being sold by such Selling Shareholder to ~~document~~ the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will ~~not~~ do or perform all things required to be done or performed by such Selling Shareholder prior to the First Time of Delivery or any Subsequent Time of Delivery, as the case may be, to satisfy all conditions precedent to the delivery of the Shares pursuant to this Agreement or the Durable Power of Attorney and Custody Agreement. (iv) That such Selling Shareholder has delivered to the Company an agreement pursuant to which such Selling Shareholder has agreed that during the period of 120 days from the date the Registration Statement is declared effective under the Act, such Selling Shareholder will not, without your prior written consent, offer, pledge, issue, sell, contract to sell, grant any option for the sale of, or otherwise dispose of (or announce any offer, pledge, sale, grant of an option to purchase or other disposition), directly or indirectly, any shares of Common Stock or securities convertible into, exercisable or exchangeable for, shares of Common Stock, except as provided in Section 2 and except for the sale of Common Stock upon the exercise of stock options or warrants outstanding on the date of this Agreement to the extent that such stock options or warrants are disclosed in the Prospectus. (v) No Selling Shareholder will (A) take, directly or indirectly, prior to the termination of the underwriting syndicate contemplated by this Agreement, any action designed to cause or to result in, or that ~~has constituted or~~ might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (B) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares or (C) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company. (ivvi) Such Selling Shareholder agrees ~~that it~~ to deliver to the Custodian on or prior to the First Time of Delivery (or the Subsequent Time of Delivery, as the case may be) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department Regulations in lieu thereof). (vii) Such Selling Shareholder will ~~not prepare~~ furnish any documents, instruments or ~~have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials~~ other information which you may reasonably request in connection with the ~~offer or~~ sale and transfer of the Shares. (vviii) ~~During the Prospectus Delivery Period, such~~ Such Selling Shareholder will ~~advise~~ use its or his best efforts to comply or cause to be complied with the ~~Representatives promptly, and will confirm such advice in writing~~ conditions to the ~~Representatives~~obligations of the Underwriters in subsections (d), (i) and (j) of ~~any change in the information relating~~ Section 7 hereof insofar as such conditions relate to such Selling ~~Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package~~Shareholder.

Appears in 1 contract

Samples: Underwriting Agreement (K&g Mens Center Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved (which approval shall not be unreasonably withheld or delayed) by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act,~~ and Regulations and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter~~ other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ or exchangeable or exercisable for shares of Common Stock or derivative of ~~the Company~~ Common Stock (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except~~ BT Alex. Xxxxx Incorporated. The foregoing sentence shall not apply to (A) ~~with respect to~~ the Shares to be sold ~~hereunder~~to the Underwriters pursuant to this Agreement, (B) ~~the grant~~ shares of Common Stock issued by the Company upon the exercise of options granted under the stock ~~options, restricted stock or other awards pursuant to~~ options plans of the ~~Company’s benefit plans~~ Company (the "Options Plans") all as described in footnote (___) to the table under the caption "Capitalization" in the Prospectus~~; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period~~, (C) the ~~issuance by~~ grant of options to purchase Common Stock under the ~~Company of~~ Option Plans, and (D) shares of Common Stock ~~upon the exercise of an option~~ or ~~warrant outstanding on the date hereof and which is described in the Prospectus~~securities convertible into, ~~(D) the issuance by the Company of~~ or exercisable for, shares of Common Stock ~~in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition~~pursuant to an acquisition transaction. (~~xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii~~ix) The Company has caused each officer and director ~~and each of the Selling Shareholders~~ of the Company and certain stockholders (Xxx Xxxxxxx, the entities affiliated with the Xxxx Family Trusts and Gotel Investment, Ltd.) to furnish to you, on or prior to the date of this ~~agreement~~Agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 90 days, and in certain cases, for a period of 45 days, after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Xxxxx Incorporated (~~the “~~"Lockup ~~Agreement”~~Agreements"). (~~xiv~~x) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus. (xi) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ~~1940 Act~~0000 Xxx. (xvxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company, provided that the actions of any of the Underwriters in that regard shall not be deemed actions of the Company. (b) ~~Each~~ The Selling Sharehodler and subject to the exercise of the Underwriters' Option, each of the Additional Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter into any Hedging Transaction relating to the Common Stock~~ other capital stock of the Company ~~will be made~~ or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Xxxxx Incorporated. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Option Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of Common Stock, provided that the actions of any ~~securities~~ of the ~~Company. (iv) Such Selling Shareholder agrees~~ Underwriters in that ~~it will~~ regard shall not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale be deemed actions of ~~the Shares. (v) During the Prospectus Delivery Period,~~ such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure PackageShareholder.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Star Telecommunications Inc)

Covenants of the Company and the Selling Shareholders. (ai) The Company covenants and agrees with the several Underwriters that: (ia) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the ~~Act,~~ Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (iib) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing ~~Prospectus(es)~~ Prospectuses included in on Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (~~iii) [Intentionally Omitted]. (iv~~c) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus, any Issuer Free Writing Prospectus, or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event or development within the Prospectus Delivery Period (as defined below) as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (vd) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (x) qualify as a foreign ~~corporation or to~~ corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vie) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~f) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event or development shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (~~viii~~g) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event or development shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with lawPackage. (ixh) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (xi) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xij) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives; provided, ~~except~~ however, that (~~A) with respect to Shares to be sold hereunder, (B~~i) the ~~grant by the~~ Company ~~of stock options, restricted stock~~ may issue and sell Common Stock or ~~other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock~~ securities convertible into or ~~other awards do not become~~ exercisable or ~~vest during such 90 day period, (C) the issuance by the Company of~~ exchangeable for shares of Common Stock ~~upon~~ pursuant to any compensatory stock option plan, stock ownership plan or dividend reinvestment plan of the ~~exercise of an option or warrant outstanding on~~ Company in effect at the ~~date hereof~~ Applicable Time and ~~which is described~~ disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (Dii) the ~~issuance by the~~ Company may issue and sell up to an aggregate of 149,285 shares of Common Stock pursuant to certain rights of its aircraft lessors to purchase shares of Common Stock disclosed in ~~connection with a strategic partnering transaction~~ the Registration Statement, the General Disclosure Package and the Prospectus, and (Eiii) the Company may issue Common Stock issuable upon the exercise or conversion of securities outstanding at the Applicable Time or pursuant to the transactions contemplated by the 2014 Recapitalization Agreement, as disclosed in ~~exchange for all or substantially all~~ the Registration Statement, General Disclosure Package and the Prospectus. Notwithstanding the foregoing, if (1) during the last 17 days of the ~~equity~~ 180-day restricted period, the Company issues an earnings release or ~~assets~~ material news or a material event relating to the Company occurs, or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a ~~company~~ material event relating to the Company, as the case may be, unless the Representatives waive, in ~~connection with a merger~~ writing, such extension. The Company shall promptly notify the Representatives of any earnings release, news or ~~acquisition~~event that may give rise to an extension of the initial 180-day restricted period. (~~xii~~k) The Company will use its best efforts to ~~maintain the listing of~~ list the Shares on the ~~New York Stock Exchange~~NASDAQ Global Market. (~~xiii~~l) The Company has caused each officer and director and ~~each~~ substantially all of the ~~Selling Shareholders of the Company~~ shareholders to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a Lockup Agreement for an officer or director of the Company and provides the Company with notice of the impending release or waiver, substantially in the form attached as Exhibit B hereto, at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news service or any other method that satisfies the obligations described in FINRA Rule 5131(d)(2) at least two business days before the effective date of the release or waiver. (~~xiv~~m) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. (n) The Company shall file with the Commission such information on Form 10-Q or Form 10-K, as may be required by Rule 463 under the Act. (o) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvp) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~q) The Company has entered, or will enter, stop transfer instructions with its transfer agent and registrar against the transfer of any of its equity securities by any person or entity who is an equityholder on the date hereof and is subject to the transfer restrictions set forth in a Lockup Agreement. The Company will not lift such stop transfer instructions during the period ending 180 days after the date of the Prospectus (or such restricted period as may be extended as set forth in the Lockup Agreements and the last paragraph of Section 4(i)(j)) without the prior written consent of the Representatives on behalf of the Underwriters. (r) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (bii) Each of the Selling ~~Shareholders~~ Shareholders, severally and not jointly, covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (iia) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the ~~transactions~~ transaction herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (vb) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any material change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Virgin America Inc.)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on ~~Rules 430A, 430B or 430C~~ Rule 430A under the ~~Act,~~ Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV V hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record ~~keeping~~ keeping, and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Shares, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representatives or counsel to the Underwriters shall reasonably object. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use ~~its best~~ commercially reasonable efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, file a general consent to service of process in any such jurisdiction ~~where~~ or subject itself to taxation in any such jurisdiction if it is not ~~now~~ otherwise so ~~qualified or required to file such a consent~~subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the ~~period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer~~Prospectus Delivery Period, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus ~~or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus~~ so that the Prospectus as so amended or supplemented will not, in ~~the~~ light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package ~~or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package~~ so that the General Disclosure Package as so amended or supplemented will not, in ~~the~~ light of the ~~circumstances~~circumstances when it is so delivered, be ~~misleading or conflict with the Registration Statement then on file~~misleading, or so that the General Disclosure Package will comply with the law. (ix) The Company will make generally available to its security ~~holders~~holders and the Representatives, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the ~~Act and will advise you in writing when such statement has been so made available~~Act. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter~~ other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such), except for the ~~Company~~ issuance of shares of Common Stock upon the exercise of outstanding options under employee stock option plans described in the Registration Statement, the General Disclosure Package and the Prospectus, and the grant of options to purchase shares of Common Stock under such plans, will be made for a period of 90 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives. Notwithstanding the foregoing, ~~except~~ if (A1) ~~with respect to Shares to be sold hereunder~~during the last 17 days of the 180-day restricted period, ~~(B) the grant by~~ the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of ~~stock options~~the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted ~~stock~~ period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or ~~other awards pursuant~~ the occurrence of material news or a material event relating to the Company~~’s benefit plans~~ , as ~~described~~ the case may be, unless the Representatives waive, in ~~the Prospectus; provided that~~ writing, such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionextension. (xii) The Company will use its best efforts to, subject to notice of issuance, effect and maintain the listing of the Shares on the ~~New York Stock Exchange~~Nasdaq Global Market. (xiii) The Company ~~has caused each officer~~ shall apply the net proceeds of its sale of Shares as set forth in the Registration Statement, the General Disclosure Package and ~~director~~ the Prospectus and ~~each of~~ shall file such reports with the ~~Selling Shareholders of the Company to furnish to you, on or prior~~ Commission with respect to the ~~date~~ Company’s sale of ~~this agreement, a letter or letters, substantially~~ Shares and its application of its proceeds therefrom as may be required in accordance with Rule 463 under the ~~form attached hereto as Exhibit A (the “Lockup Agreement”)~~Act. (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of ~~any securities~~ the shares of ~~the Company~~Common Stock in violation of applicable law. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter into any Hedging Transaction relating to the Common Stock~~ other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than as permitted in the “lock-up” agreement described in Section 6(n) hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives. Notwithstanding the foregoing, except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if ~~the transfer is by~~ (1) ~~gift~~during the last 17 days of the 180-day restricted period, ~~will~~ the Company issues an earnings release or ~~intestacy,~~ material news or a material event relating to the Company occurs; or (2) ~~distribution~~ prior to ~~partners~~the expiration of the 180-day restricted period, ~~members~~ the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or ~~shareholders~~ the occurrence of ~~such Selling Shareholder, and (D) the exercise of any options~~ material news or ~~other rights granted pursuant~~ a material event relating to the Company~~’s stock option~~, ~~employee stock purchase or any of its incentive plans~~as the case may be, unless the Representatives waive, in ~~each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above~~writing, such ~~Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement~~extension. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed ~~United States~~ U.S. Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or ~~that has constituted or~~ which might reasonably be expected to ~~constitute~~cause or result in, the stabilization or manipulation of the price of ~~any securities~~ shares of ~~the Company~~Common Stock in violation of applicable law. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will use commercially reasonable efforts to advise the Representatives promptly, and ~~will~~ to confirm such advice in writing to the Representatives, of any material change in the information relating to such Selling Shareholder in the Registration Statement, the ~~Prospectus or any document comprising the~~ General Disclosure ~~Package~~Package or the Prospectus.

Appears in 1 contract

Samples: Equity Underwriting Agreement (McLeodUSA INC)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the ~~several~~ Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the ~~Representatives~~ Underwriters containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act~~and Regulations, (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to ~~the General Disclosure Package or~~ the Prospectus or document incorporated by reference therein of which the ~~Representatives~~ Underwriters shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Underwriters shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the ~~Representatives~~ Underwriters promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the ~~Representatives~~ Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Underwriters may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Underwriters may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the ~~Representatives~~Underwriters, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives Underwriters during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Underwriters may reasonably request. The Company will deliver to the ~~Representatives~~ Underwriters at or before the Closing Date, ~~four signed~~ three signed, xeroxed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including any documents incorporated by reference therein, and of all amendments thereto, as the ~~Representatives~~ Underwriters may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and ~~Regulations,~~ Regulations and the Exchange ~~Act,~~ Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five (5) years from the Closing Date, deliver to the Underwriters copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Underwriters similar reports with respect to significant subsidiaries, as ~~soon as they have been prepared by or~~ that term is defined in the Rules and Regulations, which are ~~available to~~ not consolidated in the Company~~, a copy of any unaudited interim~~ 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectusstatements. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~BT Alex. Brown Incorporated, except ~~(A) with respect to Shares to be sold hereunder, (B) the grant by~~ that the Company ~~of stock options~~may, ~~restricted stock or other awards~~ without such xxxxxnt (i) grant options pursuant to the Company~~’s benefit plans as described in the Prospectus; provided that such options, restricted~~ 's existing employee stock ~~or other awards do not become exercisable or vest during such 90 day period~~option plans, (Cii) ~~the issuance by the Company of shares of~~ issue Common Stock upon the exercise of ~~an option~~ outstanding options or ~~warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of~~ warrants to purchase shares of Common Stock ~~in connection with a strategic partnering transaction and (E) in exchange for all~~ or ~~substantially all~~ the conversion of outstanding securities of the ~~equity~~ Company convertible into shares of Common Stock on the date of this Agreement or ~~assets of a company in connection with a merger or acquisition~~(iii) issue Common Stock as consideration for acquisitions. (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ list, subject to notice of issuance, the Shares on the ~~New York Stock Exchange~~NYSE. (~~xiii~~x) The Company has caused each executive officer and director and ~~each of the~~ Selling ~~Shareholders~~ Shareholder of the Company to furnish to you, on or prior to the date of this ~~agreement~~Agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person has agreed not to offer, sell, sell short or otherwise dispose of any shares of Common Stock of the Company owned by such person (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) or request the registration for the offer or sale of any of the foregoing for a period of 180 days after the date of the Prospectus, directly or indirectly, except with the prior written consent of BT Alex. Brown Incorporated, provided that the Company may, without sucx xxxsent, (i) grant options pursuant to the “Company's existing employee stock option plans, (ii) issue Common Stock upon the exercise of outstanding options or warrants to purchase shares of Common Stock or the conversion of outstanding securities of the Company convertible into shares of Common Stock on the date of this Agreement or (iii) issue Common Stock as consideration for acquisitions ("Lockup ~~Agreement”~~Agreements"). (~~xiv~~xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus. (xii) The Company shall not invest, or otherwise ~~use~~ use, the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the ~~several~~ Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company otherwise than hereunder or~~ such Selling Shareholder except with the prior ~~written~~ consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Brown Incorporated. (ii) In order to document ~~the Underwriters’~~ xxx Xnderwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form ~~W-8 or~~ W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Coach Usa Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company ~~covenants~~ and ~~agrees~~ the Selling Shareholders covenant and agree with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act~~and Regulations, (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to ~~the General Disclosure Package or~~ the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five (5) years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as ~~soon as they have been prepared by or~~ that term is defined in the Rules and Regulations, which are ~~available to~~ not consolidated in the Company~~, a copy of any unaudited interim~~ 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectusstatements. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Class A Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to~~ of the Company, the Class B Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Class A Common Stock or Class B Common Stock of the Company or derivative of Class A Common Stock, the Class B Common Stock of the Company (or agreement for such) will be made for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company ~~otherwise than hereunder~~ except for shares issued by the company under its Incentive Stock Plan, in connection with acquisitions or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.BT Alex. Xxxxx

Appears in 1 contract

Samples: Underwriting Agreement (Covenant Transport Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act~~and Regulations, (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to ~~the General Disclosure Package or~~ the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. ~~The~~ Upon request, the Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (iA) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (iiB) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security ~~holders~~holders and the Representatives, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and ~~will advise you in writing when such statement has been so made available~~Regulations. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter~~ other securities convertible into ~~any Hedging Transaction (as defined in Exhibit A hereto) relating to the~~ or exchangeable or exercisable for shares of Common Stock or derivative of ~~the Company~~ Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least~~ Deutsche Bank Securities Inc. ~~or Xxxxxx Brothers Inc.~~("DBSI"); provided, ~~except (A) with respect to Shares to be sold~~ hereunder, ~~(B)~~ nothing herein shall be deemed to prohibit the ~~grant by the Company~~ exercise of ~~stock options, restricted stock or other awards pursuant~~ options issued prior to the ~~Company’s benefit plans as described in~~ date hereof (including the ~~Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company~~ acquisition of any shares of Common Stock ~~upon~~ as payment of the exercise price or in satisfaction of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisitionany tax withholding obligation). (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ list, subject to notice of issuance, the Shares on the ~~New York~~ American Stock Exchange. (~~xiii~~x) The Company has caused each officer and director ~~and each of the Selling Shareholders~~ of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall, subject to such exceptions as ~~Exhibit A~~ may be set forth in such letter or letters, agree not to offer, sell, sell short or otherwise dispose of any shares of Common Stock or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as to which such person has the “right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, except with the prior written consent of DBSI ("Lockup ~~Agreement”~~Agreements"). (~~xiv~~xi) The Company shall apply the net proceeds of its sale of the Firm Shares and any Option Shares it may sell as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Firm Shares or the Option Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock or ~~enter into any Hedging Transaction relating to the Common Stock~~ other capital stock of the Company ~~will be made~~ or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Shareholder has the right to direct the disposition of) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or pursuant to the exercise of options issued prior to the date hereof (including the surrender of shares of Common Stock as payment of the exercise price or in satisfaction of any tax withholding obligation) or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementDBSI. (ii) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, ~~each of the~~ such Selling ~~Shareholders~~ Shareholder agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Orleans Homebuilders Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV V hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [~~Intentionally Omitted~~Reserved]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xi) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives; however, ~~except (A) with respect to Shares to be sold hereunder, (B) the grant by~~ the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of may issue shares of Common Stock in ~~connection with a strategic partnering transaction and (E) in exchange for all or substantially all~~ an aggregate amount not to exceed 5% of the ~~equity~~ Company’s outstanding shares of Common Stock after giving effect to the issuance or ~~assets~~ sale of ~~a company~~ Common Stock offered hereby in connection with an acquisition by the Company of any business, products or technologies provided that the holders of any shares of Common Stock issued pursuant to this subclause shall agree to be bound by an agreement substantially in the form of Exhibit A hereto for a ~~merger~~ period that shall not exceed the remainder of the 180-day restricted period. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or ~~acquisition~~material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the Company, as the case may be, unless the Representatives waive, in writing, such extension. (xii) The Company will use its best efforts to list the shares for quotation on The Nasdaq Global Market and maintain the listing of the Shares on ~~the New York Stock Exchange~~The Nasdaq Global Market. (xiii) The Company has caused each ~~officer~~ officer, director, Selling Shareholder and ~~director and each~~ shareholders beneficially owning 1% or more of the ~~Selling Shareholders~~ Company’s Common Stock as of ~~the Company~~ September 30, 2007 to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, General Disclosure Package and the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Act. (xv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the ~~1940 Act~~1000 Xxx. (xvxvi) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xvii) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (xviii) The Company will comply with all applicable securities and other applicable laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives. Notwithstanding the foregoing, except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if ~~the transfer is by~~ (1) ~~gift~~during the last 17 days of the 180-day restricted period, ~~will~~ the Company issues an earnings release or ~~intestacy,~~ material news or a material event relating to the Company occurs; or (2) ~~distribution~~ prior to ~~partners~~the expiration of the 180-day restricted period, ~~members~~ the Company announces that it will release earnings results during the 16-day period following the last day of the 180-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or ~~shareholders~~ the occurrence of ~~such Selling Shareholder, and (D) the exercise of any options~~ material news or ~~other rights granted pursuant~~ a material event relating to the Company~~’s stock option~~, ~~employee stock purchase or any of its incentive plans~~as the case may be, unless the Representatives waive, in ~~each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above~~writing, such ~~Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement~~extension. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Cardtronics Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants ~~and agrees~~ with ~~the several Underwriters that~~each Underwriter as follows: (i) The Company will ~~(A) prepare and timely file with~~ use its best efforts to cause the ~~Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted~~ Registration Statement, if not effective at the ~~time of effectiveness of~~ Representation Date, and any amendment thereof, to become effective as promptly as possible after the ~~Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B)~~ filing thereof. The Company will not file any amendment to the Registration Statement or ~~distribute an~~ amendment or supplement to the ~~General Disclosure Package~~ Prospectus, any Rule 434 Act Regulation term sheet or ~~the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or~~ any 462(b) Act Regulation abbreviated Registration Statement, to which the Representatives shall ~~have~~ reasonably ~~objected~~ object in writing after a reasonable opportunity to review such amendment or ~~which~~ supplement. Subject to the foregoing sentences in this clause (i), if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus or supplement to the Prospectus is ~~not in compliance with~~ otherwise required under Rule 424(b), the ~~Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy~~ Company will cause the Prospectus to be completed, or ~~information statements required~~ such supplement thereto to be filed ~~by the Company~~ with the Commission ~~subsequent~~ pursuant to the ~~date~~ applicable paragraph of Rule 424(b) within the ~~Prospectus~~ time period prescribed and ~~prior~~ will provide evidence reasonably satisfactory to the ~~termination~~ Representatives of ~~the offering of the Shares by the Underwriters. (ii)~~ such timely filing. The Company promptly will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless advise the Representatives ~~approve its use in writing prior to first use~~ (~~each~~a) when the Registration Statement, ~~a “Permitted Free Writing~~ if not effective at the Representation Date, and any amendment thereto, shall have become effective; (b) when the Prospectus~~”); provided that the prior written consent of the Representatives hereto~~ , and any supplement thereto, shall ~~be deemed to~~ have been ~~given in respect of the Issuer Free Writing Prospectus(es~~filed (if required) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule ~~433(d~~424(b); (c) ~~under~~ when any amendment to the ~~Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not~~ Registration Statement shall have been ~~required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with~~ filed or become effective; (d) of any request by the Commission for any ~~electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when~~ amendment of or supplement to the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information~~, and~~ ; (De) of the receipt by the Company of any notification of, or if the Company otherwise has knowledge of, the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing~~ the institution or ~~suspending the use~~ threatening of any ~~Preliminary Prospectus,~~ proceeding for that purpose; and (f) of the receipt by the Company of any ~~Issuer Free Writing Prospectus~~ notification with respect to the suspension of the qualification of the Stock for sale in any jurisdiction or the ~~Prospectus,~~ initiation or ~~of the institution~~ threatening of any ~~proceedings~~ proceeding for ~~that purpose or pursuant to Section 8A of the Act~~such purpose. The Company will use its best efforts to prevent the issuance of any such stop order ~~and~~ and, if issued, to obtain as soon as possible the ~~lifting~~ withdrawal thereof. (ii) If, at any time when a prospectus relating to the Stock is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if ~~issued~~it shall be necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with the Act or the Act Regulations, the Company promptly will prepare and file with the Commission, subject to the second sentence of Section 3(i), an amendment or supplement which will correct such statement or omission or effect such compliance. (iii) The Company consents to the use of the Prospectus in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which Stock is offered by the Underwriters and by all dealers to whom Stock may be sold, both in connection with the offering and sale of the Stock and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with the sales by any Underwriters or dealer. The Company will comply with all requirements imposed upon it by the Act, as now and hereafter amended, so far as necessary to permit the continuance of sales of or dealing in the Stock in accordance with the provisions hereof and of the Prospectus. (iv) Not later than the 45th day following the end of the fourth fiscal quarter first occurring after the "effective date" (as defined in Rule 158 under the Act) of the Registration Statement (the "Effective Date"), the Company will mail and make generally available to its security holders a consolidated earning statement covering a period of at least twelve (12) months beginning with the first full calendar quarter following the Effective Date which shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder and shall advise you in writing when such statement has been made so available. (v) The Company will ~~cooperate with~~ furnish to the ~~Representatives in endeavoring to qualify~~ Representatives, without charge, one signed copy of the ~~Shares for sale under~~ Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the ~~securities laws~~ Underwriters or a dealer may be required by the Act, as many copies of ~~such jurisdictions~~ each Preliminary Prospectus and the Prospectus and all amendments and supplements thereto as the Representatives may reasonably ~~have designated~~ request. (vi) The Company will apply the net proceeds from the sale of the Stock to be sold hereunder in ~~writing~~ accordance with the description set forth in the "Use of Proceeds" section of the Prospectus. (vii) The Company will cooperate with the Representatives and ~~will make~~ their counsel in connection with endeavoring to obtain and maintain the qualification or registration, or exemption from qualification, of the Stock for offer and sale under the applicable securities or Blue Sky laws of such ~~applications~~states and other jurisdictions of the United States as the Representatives may designate; provided, ~~file such documents, and furnish such information as may be reasonably required for~~ that ~~purpose, provided~~ in no event shall the Company ~~shall not~~ be ~~required~~ obligated to qualify ~~as a foreign corporation~~ to do business in any jurisdiction where it is not now so qualified or to ~~file a~~ take any action which would subject it to taxation or general ~~consent to~~ service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawsubject. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering During a period of ~~at least 12 consecutive months beginning after~~ five (5) years commencing with the ~~effective~~ date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Datehereof, the Company will furnish to the ~~Underwriters~~Representatives, ~~as soon as they have been prepared by or are available~~ and to ~~the Company~~each Underwriter who may so request in writing, ~~a copy~~ copies of ~~any unaudited interim financial statements~~ all periodic and special reports furnished to shareholders of the Company ~~for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement~~and of all information, ~~the General Disclosure Package~~ documents and the Prospectus. (xi) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.reports filed with

Appears in 1 contract

Samples: Underwriting Agreement (Overland Data Inc)

Covenants of the Company and the Selling Shareholders. ~~(a) The Company covenants and agrees with the several Underwriters that:~~ (i) The Company ~~will~~ covenants with each Underwriter as follows: (Aa) ~~prepare~~ To furnish to you, without charge, four signed copies of the Registration Statement (including exhibits thereto) and ~~timely~~ for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Sections 7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request. (b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission ~~under~~ within the applicable period specified in Rule 424(b) under the Securities Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements prospectus required to be filed pursuant to such Rule. (c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company ~~with the Commission subsequent~~ and not to ~~the date of the Prospectus and prior~~ use or refer to ~~the termination of the offering of the Shares by the Underwriters~~any proposed free writing prospectus to which you reasonably object. (iid) ~~The Company will (i) not make any offer relating~~ Not to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of ~~such~~ the Underwriter that ~~such~~ the Underwriter otherwise would not have been required to file thereunder~~. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show~~. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its best efforts to prevent the issuance of any such order and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viiie) If the ~~General Disclosure Package~~ Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of ~~which, in the judgment of the Company or in the reasonable opinion of the Underwriters,~~ which it ~~becomes~~ is necessary to amend or supplement the ~~General Disclosure Package~~ Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or ~~to make~~ if any event shall occur or condition exist as a result of which the ~~statements therein not conflict~~ Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if if, in the reasonable opinion of counsel for the Underwriters, it is necessary ~~at any time~~ to amend or supplement the ~~General Disclosure Package~~ Time of Sale Prospectus to comply with ~~any~~ applicable law, ~~the Company promptly will either (i)~~ forthwith to prepare, file with the Commission ~~(if required)~~ and ~~furnish~~ furnish, at its own expense, to the Underwriters and to any ~~dealers an appropriate amendment~~ dealer upon request, either amendments or ~~supplement~~ supplements to the ~~General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package~~ Time of Sale Prospectus so that the ~~General Disclosure Package~~ statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the ~~circumstances~~circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration ~~Statement then on file~~Statement, or so that the ~~General Disclosure Package~~ Time of Sale Prospectus, as amended or supplemented, will comply with applicable law. (ixf) ~~The~~ If, during such period after the first date of the public offering of the Shares as in the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the reasonable opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. (g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that nothing contained in this Section 7(g) shall require the Company ~~will~~ to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits or to subject itself to taxation in any jurisdiction in which it is otherwise not so subject other than suits and taxes arising out of the offering. (h) To make generally available to ~~its~~ the Company’s security ~~holders,~~ holders and to you as soon as ~~it is~~ practicable ~~to do so, but in any event not later than 15 months after the effective date of the Registration Statement,~~ an ~~earnings~~ earning statement ~~(which need not be audited) in reasonable detail,~~ covering a period of at least ~~12 consecutive~~ twelve months beginning with the first fiscal quarter of the Company occurring after the ~~effective~~ date of ~~the Registration Statement,~~ this Agreement which ~~earnings statement~~ shall satisfy the ~~requirements~~ provisions of Section 11(a) of the Securities Act and ~~Rule 158 under~~ the ~~Act~~ rules and ~~will advise you in writing when such statement has been so made available~~regulations of the Commission thereunder. (xi) ~~Prior~~ Each Selling Shareholder, in addition to its other agreements and obligations hereunder, severally and not jointly, covenants with each Underwriter as follows: (i) Such Selling Shareholder agrees that (i) it will not prepare, or have prepared on its behalf, or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the ~~Closing Date~~Securities Act), and (ii) it will not distribute any written materials in connection with the offer or sale of the Shares. (ii) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriters that the Underwriters otherwise would not have been required to file thereunder. (iii) During the period when delivery of a Prospectus (or, in lieu thereof, the ~~Company~~ notice referred to under Rule 173(a) under the Securities Act) is required under the Securities Act, such Selling Shareholder will ~~furnish~~ advise the Underwriters promptly, and will confirm such advice in writing to the Underwriters, ~~as soon as they have been prepared by or are available to the Company, a copy~~ of any ~~unaudited interim financial statements of~~ change in the ~~Company for any period subsequent~~ information relating to ~~the period covered by the most recent financial statements appearing~~ such Selling Shareholder in the Registration Statement, the ~~General Disclosure Package and~~ Time of Sale Prospectus or the Prospectus. (xi) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iiiiv) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (ivv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale Each of the ~~Shares. (v) During the Prospectus Delivery Period, such~~ Selling ~~Shareholder will advise the Representatives promptly, and will confirm such advice in writing~~ Shareholders agrees to deliver to the ~~Representatives, of any change~~ Underwriters prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in ~~the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package~~lieu thereof).

Appears in 1 contract

Samples: Underwriting Agreement (Genpact LTD)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A~~and Regulations, ~~430B or 430C under the Act,~~ and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and ~~Regulations~~ Regulations. To the extent applicable, the copies of the Registration Statement and each amendment thereto (Cincluding all exhibits filed therewith), any Preliminary Prospectus or Prospectus (in each case, as amended or supplemented) ~~file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent~~ furnished to the ~~date of the Prospectus and prior~~ Underwriters will be identical to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be electronically transmitted copies thereof filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to ~~Rule 433(d) under~~ XXXXX, except to the ~~Act a free writing prospectus prepared~~ extent permitted by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show.Regulation S-T. (~~iii) [Intentionally Omitted]. (iv~~ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, ~~four~~ three signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) ~~Prior to~~ The Company will, for a period of five years from the Closing Date, deliver to the Representatives copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or Section 13 of the Securities Exchange Act of 1934, as ~~soon as they have been prepared by or are available~~ amended. The Company will deliver to the Representatives similar reports with respect to significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements. To the extent applicable, ~~a copy of any unaudited interim financial statements of the Company for any period subsequent~~ such reports or documents shall be identical to the ~~period covered~~ electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by ~~the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus.~~Regulation S-T. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.of

Appears in 1 contract

Samples: Underwriting Agreement (Bright Horizons Holdings Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the ~~several Underwriters~~ Underwriter that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to ~~the General Disclosure Package or~~ the Prospectus or document incorporated by reference therein of which the ~~Representatives~~ Underwriter shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Underwriter shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (CB) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the ~~Underwriters~~Underwriter. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the ~~Representatives~~ Underwriter promptly (A) when the ~~Registration Statement or~~ any post-effective amendment ~~thereto~~ to the Registration Statement shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such ~~order and to obtain as soon as possible the lifting thereof, if issued.~~stop order (viii) The Company will cooperate with the ~~Representatives~~ Underwriter in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Underwriter may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Underwriter may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives Underwriter during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Underwriter may reasonably request. The Company will deliver to the ~~Representatives~~ Underwriter at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the ~~Representatives~~ Underwriter such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the ~~Representatives~~ Underwriter may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the ~~Underwriters~~Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (i) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Securities Exchange Act of 1934 which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (~~viii~~vi) If Provided that it continues to be a reporting company under the ~~General Disclosure Package is being used to solicit offers to buy~~ Securities Exchange Act of 1934, as amended (the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law"Exchange Act"), the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ix) The Company will make generally available to ~~its security holders~~its (vii) Provided that it continues to be a reporting company under the Exchange Act, ~~as soon as it is practicable to do so~~the Company will, ~~but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering~~ for a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to five years from the Closing Date, deliver to the Underwriter copies of annual reports and copies of all other documents, reports and information furnished by the Company ~~will furnish~~ to its stockholders or filed with any securities exchange pursuant to the ~~Underwriters~~requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to the Underwriter similar reports with respect to significant subsidiaries, as ~~soon as they have been prepared by or~~ that term is defined in the Rules and Regulations, which are ~~available to~~ not consolidated in the Company~~, a copy of any unaudited interim~~ 's financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectusstatements. (xi) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock of the Company will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvviii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~ix) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the ~~several Underwriters~~ Underwriter and the Company that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, BT Alex. Browx Xxxorporated and ~~(D) the exercise of any options or other rights granted pursuant to~~ the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the ~~Underwriters’~~ Underwriter's compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Primark Corp)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the ~~Act,~~ Act and (B) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or any document incorporated by reference therein of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the UnderwritersRegulations. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in on Schedule IV D hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) ~~[Intentionally Omitted]~~The Company will promptly notify the 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 Securities within the meaning of the Act and (b) completion of the 90-day restricted period referred to in Section 4(xi) hereof. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any of the documents incorporated by reference therein has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional ~~information, and~~ information or (DE) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus (including any documents incorporated by reference therein), the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any ~~such~~ order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (v) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (x) qualify as a foreign ~~corporation or to~~ corporation, (y) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (z) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (vi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (vii) The Company will comply with the Act and the Rules and Regulations, and the Exchange ~~Act,~~ Act and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus or file under the Exchange Act any document incorporated by reference in the Prospectus in order to make the statements ~~therein~~in the Prospectus, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration ~~Statement or~~ Statement, supplement to the Prospectus or ~~(ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be~~ such other document incorporated by reference ~~in the Prospectus~~ so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will ~~either (i)~~ prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with lawPackage. (ix) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act ~~and~~ (including, at the option of the Company, Rule ~~158 under the Act and will advise you in writing when such statement has been so made available~~158). (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the ~~Prospectus~~Prospectus or incorporated by reference therein. (xi) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representatives, in each case except for (A) ~~with respect to~~ the Shares to be sold hereunder, (B) ~~the grant by~~ any shares of Common Stock of the Company issued upon the exercise of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day periodoptions granted under Company equity incentive plans, (C) any shares of Common Stock issued upon conversion of the Company’s outstanding preferred stock and (D) the entry into an agreement providing for the issuance by the Company of shares of Common Stock ~~upon the exercise of an option~~ or ~~warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of~~ any security convertible into or exercisable for shares of Common Stock in connection with ~~a strategic partnering transaction and (E) in exchange for all~~ the bona fide acquisition by the Company or ~~substantially all~~ any of its subsidiaries of the ~~equity~~ securities, business, property or other assets of another person or entity, provided, however, that each recipient of shares of Common Stock or securities convertible into or exercisable for Common Stock pursuant to clause (D) shall execute a ~~company in connection with a merger or acquisition~~Lockup Agreement (as defined below), and provided, further, that such issuance does not exceed 10% of the Company’s fully diluted capital stock following completion of the transactions contemplated by this Agreement. (xii) The Company will use its best efforts to ~~maintain~~ list the ~~listing~~ Shares, subject to notice of ~~the Shares~~ issuance, for quotation on the ~~New York Stock Exchange~~NASDAQ Global Select Market. (xiii) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to ~~furnish~~ execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders severally and not jointly covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, has executed and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of delivered the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the ~~information relating to such~~ Selling Shareholder ~~in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package~~Information.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Paylocity Holding Corp)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative and file such Rule 462(b) Registration Statement with the Commission by 10:00 P.M., New York time, on the date hereof, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Rules and Regulations, (B) prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the ~~Representatives~~ Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (BC) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the ~~Representatives~~ Representative shall not previously have been advised and furnished with a copy or to which the ~~Representatives~~ Representative shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (CD) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares pursuant to this Agreement by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the ~~Representatives approve~~ Representative approves its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); ~~provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto,~~ (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder~~. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show~~. (iii) ~~[Intentionally Omitted].~~ During the Prospectus Delivery Period (~~iv) The~~ as defined below), the Company will advise the ~~Representatives~~ Representative promptly (A) when ~~the Registration Statement or~~ any post-effective amendment ~~thereto~~ to the Registration Statement shall have become effective, (B) ~~of receipt of~~ when any ~~comments from~~ supplement to the ~~Commission~~Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, ~~and~~ (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (E) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the General Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the General Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading, and (F) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any ~~such~~ order referred to in clause (D) or (F) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (viv) The Company will cooperate with the ~~Representatives~~ Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the ~~Representatives~~ Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, ; provided that the Company shall not be required to (A) qualify as a foreign ~~corporation or to~~ corporation, (B) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (C) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the ~~Representatives~~ Representative may reasonably request for distribution of the Shares. (viv) The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Preliminary Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~Representative, from time to time, as many copies of any Issuer Free Writing Prospectus as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives~~ Representative during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the ~~Representatives~~ Representative may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the ~~Representatives~~ Representative may reasonably request. (~~vii~~vi) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the ~~Underwriters~~Representative, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will either (iA) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (iiB) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with ~~the~~ applicable law. (~~viii~~vii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition shall exist as a result of which, in the judgment of the Company or in the reasonable opinion of the ~~Underwriters~~Representative, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (iA) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (iiB) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with applicable law. (ixviii) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (x) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus. (xiix) No offering, pledge, sale~~, pledge~~, contract to ~~sell (including any~~ sell, short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) other than pursuant to (i) the transactions contemplated by this Agreement, (ii) equity incentive plans as in existence on the date of this Agreement, (iii) pursuant to the exchange, exercise or conversion of warrants or convertible securities outstanding as of the date of this Agreement, or (iv) the issuance of shares of Common Stock in connection with the acquisition of another company, provided the aggregate number of such shares shall be no more than 15% of the shares of Common Stock outstanding immediately prior to such issuance and that the recipient of such shares agrees to be bound by the restrictions set forth in this section, will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than contemplated hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~the Representative. Notwithstanding the foregoing, ~~except~~ if (A) ~~with respect~~ during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to ~~Shares to be sold hereunder~~the Company occurs, or (B) prior to the ~~grant by~~ expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of ~~stock options~~the 90-day restricted period, ~~restricted stock~~ then in each case the restrictions imposed by this Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or ~~other awards pursuant~~ the occurrence of material news or a material event relating to the Company~~’s benefit plans~~ , as ~~described~~ the case may be, unless the Representative waives, in writing, such extension. The Company shall promptly notify the ~~Prospectus; provided~~ Representative of any earnings release, news or event that ~~such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of~~ may give rise to an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all extension of the ~~equity or assets of a company in connection with a merger or acquisition~~initial 90-day restricted period. (~~xii~~x) The Company will use its best efforts to ~~maintain~~ list the ~~listing~~ Shares, subject to notice of issuance, on the NASDAQ Global Select Market. (xi) The Company shall apply the net proceeds of its sale of the Shares on as set forth in the ~~New York Stock Exchange~~Registration Statement, the General Disclosure Package and the Prospectus. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xivxii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (xv) Prior to the Closing Date, the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or its earnings, business, operations or prospects, or the offering of the Shares, without the prior written consent of the Representative, unless in the reasonable judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law or by NASDAQ Global Select Market rules, in which case the Company shall use its reasonable best efforts to allow the Underwriters reasonable time to comment on such release or other communication in advance of such issuance. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) ~~No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating~~ Each Selling Shareholder shall have executed and delivered to the ~~Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after~~ Representative, on or prior to the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified a letter substantially in the ~~Prospectus, and any other plan adopted by~~ form attached hereto as Exhibit B (the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the “Lockup Agreement”). (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the ~~Representatives~~ Representative promptly, and will confirm such advice in writing to the ~~Representatives~~Representative, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Equity Underwriting Agreement (Marchex Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A, 430B or 430C under the Act~~and Regulations, (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. . To the extent applicable, the copies of the Registration Statement and each amendment thereto (iiincluding all exhibits filed therewith), any Preliminary Prospectus or Prospectus (in each case, as amended or supplemented) ~~The Company will (i) not make any offer relating~~ furnished to the ~~Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under~~ Underwriters will be identical to the ~~Act) required to be~~ electronically transmitted copies thereof filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to ~~Rule 433(d) under~~ EDGAX, xxcept to the ~~Act a free writing prospectus prepared~~ extent permitted by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show.Regulation S-T. (~~iii) [Intentionally Omitted]. (iv~~ii) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives during the period when delivery of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder~~, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus~~. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers misleading and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of ~~at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc.~~BT Alex. Browx Xxxorporated, except that the Company may, without such consent, (A) ~~with respect to Shares to be sold hereunder,~~ issue shares upon exercise of (B1) options outstanding on the ~~grant by the Company~~ date of ~~stock options, restricted stock or other awards~~ this Agreement issued pursuant to the Company~~’s benefit~~ 's currently existing stock-based compensation plans ~~as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period,~~ and (C2) ~~the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant~~ warrants outstanding on the date ~~hereof~~ of this Agreement, and ~~which is described in the Prospectus~~(B) grant options, ~~(D) the issuance by the Company of~~ offer to sell and sell shares of its Common Stock ~~in connection with a strategic partnering transaction~~ to its employees, directors and ~~(E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition.~~consultants pursuant to its currently existing stock-based compensation plans. 13 -13- (~~xii~~ix) The Company will use its best efforts to ~~maintain the listing~~ list, subject to notice of issuance, the Shares on the ~~New York Stock Exchange~~Nasdaq National Market. (~~xiii~~x) The Company has caused each officer and director and ~~each of the Selling Shareholders~~ specific shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, ~~substantially~~ in form and substance satisfactory to the ~~form attached hereto~~ Underwriters, pursuant to which each such person shall agree not to sell, offer or contract to sell, sell short or otherwise dispose of any shares of Common Stock of the Company or other capital stock of the Company, or any other securities convertible, exchangeable or exercisable for Common Shares or derivative of Common Shares owned by such person or request the registration for the offer or sale of any of the foregoing (or as ~~Exhibit A~~ to which such person has the right to direct the disposition of) for a period of 90 days after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Browx Xxxorporated (~~the “~~"Lockup ~~Agreement”~~Agreements"). (~~xiv~~xi) The Company shall apply the net proceeds of its sale of the Shares as set forth in the Prospectus and shall include such information with respect thereto in such reports filed with the Commission as may be required in accordance with Rule 463 under the Act. (xii) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xvxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (~~xvi~~xiv) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction relating to the Common Stock~~ of the Company or other capital stock of the Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by the Selling Shareholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Shareholder has the right to direct the disposition of) will be made ~~by such Selling Shareholder~~ for a period of 90 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by ~~the Company~~ such Selling Shareholder otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup AgreementBT Alex. Browx Xxxorporated. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.

Appears in 1 contract

Samples: Underwriting Agreement (Tweeter Home Entertainment Group Inc)

Covenants of the Company and the Selling Shareholders. (a) The Company covenants and agrees with the several Underwriters that: (i) The Company will (A) use its best efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and Regulations is followed, to prepare and timely file with the Commission under Rule 424(b) ~~under~~ of the ~~Act~~ Rules and Regulations a Prospectus in a form approved by the Representatives containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules ~~430A~~and Regulations, ~~430B or 430C under the Act,~~ and (B) not file any amendment to the Registration Statement or ~~distribute an amendment or~~ supplement to the ~~General Disclosure Package or the~~ Prospectus ~~or document incorporated by reference therein~~ of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares by the Underwriters. (ii) The Company will (i) not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule IV hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The Company will satisfy the conditions in Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show. (iii) [Intentionally Omitted]. (iv) The Company will advise the Representatives promptly (A) when the Registration Statement or any post-effective amendment thereto shall have become effective, (B) of receipt of any comments from the Commission, (C) of any request of the Commission for amendment of the Registration Statement or for supplement to the ~~General Disclosure Package or the~~ Prospectus or for any additional information, and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~any order preventing or suspending~~ the use of ~~any Preliminary Prospectus, any Issuer Free Writing~~ the Prospectus ~~or the Prospectus,~~ or of the institution of any proceedings for that ~~purpose or pursuant to Section 8A of the Act~~purpose. The Company will use its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued. (viii) The Company will cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representatives may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Shares. (viiv) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the ~~Representatives, from time to time, as many copies of any Issuer Free Writing Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the~~ Representatives during the period when delivery of a Prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery Period”)~~ is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to the Representatives at or before the Closing Date, four signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), ~~including documents incorporated by reference therein,~~ and of all amendments thereto, as the Representatives may reasonably request. (~~vii~~v) The Company will comply with the Act and the Rules and Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus. If during the period in which a prospectus ~~(or, in lieu thereof, the notice referred to under Rule 173(a) under the Act)~~ is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Company promptly will ~~either (i)~~ prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to ~~the Prospectus or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in~~ the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (viii) If the General Disclosure Package is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure Package will comply with law. (ixvi) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 months after the effective date of the Registration Statement, an ~~earnings~~ earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which ~~earnings~~ earning statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 ~~under~~ of the ~~Act~~ Rules and Regulations and will advise you in writing when such statement has been so made available. (xvii) Prior to the Closing Date, the Company will furnish to the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration ~~Statement, the General Disclosure Package~~ Statement and the Prospectus. (xiviii) No offering, sale, ~~pledge, contract to sell (including any~~ short ~~sale), grant any option to purchase~~ sale or ~~otherwise dispose~~ other disposition of any shares of Common Stock ~~or enter into any Hedging Transaction (as defined in Exhibit A hereto) relating to the Common Stock~~ of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) will be made for a period of 90 180 days after the date of ~~the Prospectus~~this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) the grant by the Company of stock options, restricted stock or other awards pursuant to the Company’s benefit plans as described in the Prospectus; provided that such options, restricted stock or other awards do not become exercisable or vest during such 90 day period, (C) the issuance by the Company of shares of Common Stock upon the exercise of an option or warrant outstanding on the date hereof and which is described in the Prospectus, (D) the issuance by the Company of shares of Common Stock in connection with a strategic partnering transaction and (E) in exchange for all or substantially all of the equity or assets of a company in connection with a merger or acquisition. (xii) The Company will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. (xiii) The Company has caused each officer and director and each of the Selling Shareholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit A (the “Lockup Agreement”). (xiv) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (b) Each of the Selling Shareholders covenants and agrees with the several Underwriters that: (i) No offering, sale, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock or enter into any Hedging Transaction relating to the Common Stock of the Company will be made by such Selling Shareholder for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of at least Deutsche Bank Securities Inc. or Xxxxxx Brothers Inc., except (A) with respect to Shares to be sold hereunder, (B) shares of Common Stock acquired in open market transactions by such Selling Shareholder after the sale of the Shares, (C) any or all of the shares of Common Stock or other Company securities if the transfer is by (1) gift, will or intestacy, or (2) distribution to partners, members or shareholders of such Selling Shareholder, and (D) the exercise of any options or other rights granted pursuant to the Company’s stock option, employee stock purchase or any of its incentive plans, in each case, identified in the Prospectus, and any other plan adopted by the board of directors of the Company; provided, however, that in the case of a transfer pursuant to clause (C) above, such Selling Shareholder agrees that the securities acquired upon such exercise shall be subject to the provisions of the Lockup Agreement. (ii) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, each of the Selling Shareholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (iii) Such Selling Shareholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. (iv) Such Selling Shareholder agrees that it will not prepare or have prepared on its behalf or use or refer to, any “free writing prospectus” (as defined in Rule 405 under the Act), and agrees that it will not distribute any written materials in connection with the offer or sale of the Shares. (v) During the Prospectus Delivery Period, such Selling Shareholder will advise the Representatives promptly, and will confirm such advice in writing to the Representatives, of any change in the information relating to such Selling Shareholder in the Registration Statement, the Prospectus or any document comprising the General Disclosure Package.BT Alex. Xxxxx

Appears in 1 contract

Samples: Underwriting Agreement (U S Aggregates Inc)

Common use of Covenants of the Company and the Selling Shareholders Clause in Contracts