Covenants of the Company and the Selling Stockholders. The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters that: (a) The Company will use its best efforts to cause the Registration Statement to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunder. (b) The Company will advise the Representatives promptly of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Company will use its 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. (c) The Company will use its reasonable efforts with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; PROVIDED, HOWEVER, 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 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. (d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request. (e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law. (f) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than the 90th day after the end of the fiscal quarter first occurring one year after the Effective Date, an earnings statement in reasonable detail, covering a period of at least twelve consecutive months beginning after the Effective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and will advise you in writing when such statement has been so made available. (g) For a period of three years from the date of this Agreement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated. (h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective. (i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds." (j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives. (k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market. (l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one original (1or facsimile) manually signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary Act and the Rules and Regulations, and the Exchange Act and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter any period subsequent to the period covered by the most recent financial statements appearing in the form furnished Registration Statement and the Prospectus.
(viii) No offering, sale, 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) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Browx Xxxorporated, except that the Company may, without such consent, (A) issue shares upon exercise of options outstanding on the date of this Agreement issued pursuant to the Company's stockholders; currently existing stock-based compensation plans, and (bB) concurrently with furnishing grant options, offer to sell and sell shares of its Common Stock to its stockholdersemployees, a balance sheet directors and consultants pursuant to its currently existing stock-based compensation plans, as such plans are described in the Prospectus.
(ix) Except for holders of ______ shares of Common Stock, the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity has caused each officer and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts director of the Company and its subsidiaries are consolidatedeach stockholder of the Company designated by BT Alex. Browx Xxxorporated to furnish to you, and on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit B, pursuant to which each such person shall be accompanied 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 similar financial statements such person or request the registration for the offer or sale of any significant subsidiary of the foregoing (or as defined by to which such person has the Actright to direct the disposition of) which is not so consolidatedfor a period of 180 days (or, with respect to the Selling Stockholders, 270 days) after the date of this Agreement, directly or indirectly, except with the prior written consent of BT Alex. Browx Xxxorporated ("Lockup Agreements").
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ix) The Company will use shall apply the net proceeds from 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 substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jxi) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to in such a manner as would require the Closing Date or, if applicable, the Option Closing Date will not issue Company or any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or Subsidiaries to register as an investment company under the offering of the Shares, without the prior written consent of the Representatives1940 Xxx.
(kxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiii) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders will not, for a period of ninety covenants and agrees with the several Underwriters that:
(90i) days after In order to document the Effective Date Underwriters' compliance with the reporting and withholding provisions of the Registration StatementTax Equity and Fiscal Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with respect to the transactions herein contemplated, offer each of the Selling Stockholders agrees to selldeliver 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 Stockholder will not take, contract directly or indirectly, any action designed to sellcause or result in, sell or otherwise dispose that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any shares securities of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The (a) Each of the Company covenants and agrees, and the Selling Stockholders covenant (to the extent set forth in clause (ix) below) covenants and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters thatagrees as follows:
(ai) The Company will use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to as promptly as possible. The Company shall prepare the Prospectus (including in a prospectus filed form approved by the Representatives and file such Prospectus pursuant to Rule 424(b) which differs from under the Prospectus Securities Act not later than the Commission's close of business on file at the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by the Rules.
(ii) The Company shall promptly advise the Representatives in writing (A) when any post-effective amendment to the Registration Statement becomes effective) shall have become effective or file any documents under supplement to the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or Prospectus shall have been filed, (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunder.
(b) The Company will advise the Representatives promptly of any request of by the Commission or other securities regulatory agency ("Other Securities Regulator") for any amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the institution or threatening of any proceeding for that purpose and (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or supplement to the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and unless the Company will has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain as soon as possible the lifting withdrawal thereof, if issued.
(ciii) If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall prepare and file with the Commission, subject to the second sentence of paragraph (ii) of this Section 5(a), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earning statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(v) The Company shall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Rules, as many copies of any preliminary prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. If applicable, the copies of the Registration Statement and Prospectus and each amendment and supplement thereto furnished to the Underwriters will use its reasonable efforts be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(vi) The Company shall cooperate with the Representatives and their counsel in endeavoring to qualify the Shares for offer and sale in connection with the offering under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, designate and will make shall maintain such applications, file such documents, and furnish such information qualifications in effect so long as may be reasonably required for the distribution of the Shares; provided, however, that purpose; PROVIDED, HOWEVER, the Company shall not be required in connection therewith, as a condition thereof, to qualify as a foreign corporation or to file execute a general consent to service of process in any jurisdiction where it is not so qualified or required subject itself to file such a consent. The Company will, from time to time, prepare and file such statements, reports, and other documents, taxation as are or may be required to continue such qualifications doing business in effect for so long a period as the Representatives may reasonably request for distribution of the Sharesany jurisdiction.
(dvii) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. IfCompany, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 when the Prospectus is required to be 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 or to file under the Exchange Securities Act any document which would be deemed to be incorporated by reference in and the Prospectus in order to comply with the Act Rules or the Exchange Act, the Company promptly will notify the Representatives and, subject file all reports and other documents required to the Representatives' prior review, prepare and file be filed with the Commission and any appropriate Other Securities Regulator an appropriate amendment pursuant to Section 13, 14 or supplement to the Prospectus or file such document (at the expense 15 of the Company) so that Exchange Act within the Prospectus as so amended or supplemented will not, in light of time periods required by the circumstances when it is so delivered, be misleading, or so that Exchange Act and the Prospectus will comply with the lawregulations promulgated thereunder.
(fviii) The Company will make generally available to its security holders in Without the manner contemplated by Rule 158(b) under the Actprior written consent of CIBC World Markets Corp., as soon as it is practicable to do so, but in any event not later than the 90th day after the end of the fiscal quarter first occurring one year after the Effective Date, an earnings statement in reasonable detail, covering for a period of at least twelve consecutive months beginning 180 days after the Effective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and will advise you in writing when such statement has been so made available.
(g) For a period of three years from the date of this Agreement, the Company will furnish to and each of its individual directors and executive officers shall not issue, sell or register with the Representatives Commission (a) concurrently with furnishing of such reports to its stockholdersother than on Form S-8 or on any successor form), statements of income or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for each quarter in or exchangeable for equity securities of the form furnished Company), except for the issuance of the Shares pursuant to the Registration Statement and the issuance of shares pursuant to the Company's stockholders; existing stock option plan or bonus plan as described in the Registration Statement and the Prospectus. In the event that during this period, (bA) concurrently any shares are issued pursuant to the Company's existing stock option plan or bonus plan that are exercisable during such 180 day period or (B) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 180 period, the Company shall obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 180 days after the date of this Agreement, such person will not, without the prior written consent of CIBC World Markets Corp., offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with furnishing respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person.
(ix) Neither the Company nor any Selling Stockholder shall take, directly or indirectly, any action designed to its stockholders, a balance sheet or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of the Common Stock or any security of the Company as at to facilitate the end sale or resale of such fiscal year, together with statements of earnings, stockholders' equity and cash flow any of the Company for such fiscal yearShares.
(x) On or before completion of this offering, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries make all filings required under applicable securities laws and by the foregoing financial statements shall be on a consolidated basis Nasdaq National Market (including any required registration under the Exchange Act).
(xi) Prior to the extent that Closing Date, the accounts Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of the Representatives unless in the judgment of the Company and its subsidiaries are consolidatedcounsel, and shall be accompanied after notification to the Representatives, such press release or communication is required by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidatedlaw.
(hxii) Promptly after [The Company will comply with all applicable securities laws and other applicable laws, rules and regulations in each foreign jurisdiction in which the Company is advised thereof, it will advise Directed Shares are offered in connection with the Representatives, Friends and confirm in writing, that the Registration Statement and any amendments shall have become effectiveFamily Program.]
(ixiii) The Company will use apply the net proceeds from the sale offering of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds" in the Prospectus, and the Company will at all times prior to the application of the net proceeds from the offering operate its business so as not to become an "investment company" within the meaning of the Investment Company Act."
(jxiv) Other than as permitted [The Company will ensure that the Directed Shares will be restricted, to the extent required by the Act NASD or the NASD rules, from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. The Representatives will notify the Company as to which Participants will need to be so restricted. The Company shall direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.]
(b) The Company agrees to pay, or reimburse if paid by the Representatives, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the public offering of the Shares and the Rulesperformance of the obligations of the Company under this Agreement including those relating to: (i) the preparation, printing, filing and distribution of the Registration Statement including all exhibits thereto, each preliminary prospectus, the Company Prospectus, all amendments and supplements to the Registration Statement and the Selling Stockholders will not distribute any prospectus Prospectus, and the printing, filing and distribution of this Agreement; (ii) the preparation and delivery of certificates for the Shares to the Underwriters; (iii) the registration or offering materials qualification of the Shares for offer and sale under the securities or blue sky laws of the various jurisdictions referred to in Section 5(a)(vi), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary blue sky memoranda, if any; (iv) the furnishing (including costs of shipping and mailing) to the Representatives and to the Underwriters of copies of each preliminary prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this Section to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Shares and prior by the Underwriters or by dealers to whom Shares may be sold; (v) the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities filing fees of the Company, or the offering NASD in connection with its review of the Shares, without the prior written consent terms of the Representatives.
public offering and reasonable fees and disbursements of counsel for the Underwriters in connection with such review; (kvi) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing inclusion of the Shares for quotation on the Nasdaq National Market; and (vii) all transfer taxes, if any, with respect to the sale and delivery of the Shares by the Company to the Underwriters [(viii) payments to counsel for costs incurred by the Underwriters in connection with the Friends and Family Program and payment of any stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Friends and Family Program.] Subject to the provisions of Section 8, the Underwriters agree to pay, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all costs and expenses incident to the performance of the obligations of the Underwriters under this Agreement not payable by the Company pursuant to the preceding sentence, including, without limitation, the fees and disbursements of counsel for the Underwriters.
(lc) Except The Selling Stockholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp duties, capital duties and stock transfer taxes, if any, payable upon the sale of the Shares to the Underwriters, and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) the exercise fees and disbursements of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company their respective counsel and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or mergeaccountants.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations, and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration StatementStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), but without exhibitsincluding documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 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 any document of 1934 which would be deemed to shall be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter in the form furnished any period subsequent to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of period covered by the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and most recent financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm appearing in writing, that the Registration Statement and any amendments shall have become effectivethe Prospectus.
(iviii) No offering, sale, 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) will be made 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 BT Alex. Xxxxx Incorporated, except (a) as otherwise contemplated by this Agreement, (b) pursuant to the exercise of stock options or warrants outstanding as of the date of the Agreement, or (c) grants and options to employees and directors under existing stock option and stock purchase plans.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the NASDAQ Stock Market.
(x) The Company has caused each officer and director and Xxxxxxxxx X. Xxxxxxxx of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the 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 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 ("Lockup Agreements").
(xi) The Company shall apply the net proceeds from 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 substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jxii) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to in such a manner as would require the Closing Date or, if applicable, the Option Closing Date will not issue Company or any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or Subsidiaries to register as an investment company under the offering of the Shares, without the prior written consent of the Representatives1940 Act.
(kxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant 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 exercise stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders, severally and not jointly, covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock of the Company or other capital stock options existing prior to of the execution Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of this Agreement Common Stock owned by the Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as contemplated hereby or by the Prospectus, the Company and to which the Selling Stockholders Stockholder has the right to direct the disposition of) will not, be made for a period of ninety (90) 90 days after the Effective Date date of the Registration Statementthis Agreement, offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSBT 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, which consent each of the Selling Stockholders 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 Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Datastream Systems Inc)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Underwriters containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A of the Rules and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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, with respect to the Registration Statement (C) of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the effectiveness of the Registration Statement or the use of the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives Underwriters in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives Underwriters may reasonably designate, 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, HOWEVER, 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 distribution of the Shares for so long a period as the Representatives Underwriters may reasonably request for distribution of the Sharesrequest.
(div) The Company will deliver to, or upon the order of, the RepresentativesUnderwriters, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives Underwriters may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Underwriters during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives Underwriters at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith including all post-effective amendments thereto, if any, filed prior to the Option Closing Date, and will deliver to the Representatives Underwriters such number of copies of the Registration StatementStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), but without exhibitsincluding documents incorporated by reference therein, and of all amendments thereto, as the Representatives Underwriters may reasonably request.
(ev) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, If during the period necessary in which a Prospectus is required under the Act to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actapplicable law, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawProspectus.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(g) For a period of three years from the date of this Agreement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ivii) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will notwill, for a period of ninety 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 Exchange Act. The Company will deliver to the Underwriters 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.
(90viii) days after the Effective Date of the Registration StatementNo offering, offer to sellsale, contract to sell, sell short sale or otherwise dispose other disposition of any shares of Common Stock of the Company's common stock Company or other securities convertible into or exchangeable or exercisable for shares of the Company's common stock without the prior written consent Common Stock or derivative of BRS, which consent Common Stock (or agreement for such) will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.made for a
Appears in 1 contract
Samples: Underwriting Agreement (Industri Matematic International Corp)
Covenants of the Company and the Selling Stockholders. The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(a) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(b) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(c) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(e) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(f) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(g) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter any period subsequent to the period covered by the most recent financial statements appearing in the form Registration Statement and the Prospectus. 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 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 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 stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidatedstatements.
(h) Promptly No offering, sale, 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) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company is advised thereof, it will advise otherwise than hereunder and Common Stock issued by the Representatives, and confirm Company pursuant to a stock option or purchase plan described in writing, that the Registration Statement and any amendments shall have become effective.Prospectus or with the prior written consent of Deutsche Bank Securities Inc..
(i) The Company will use has caused each officer, director and all securityholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the 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 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 Deutsche Bank Securities Inc. ("Lockup Agreements") except as the Company has specifically advised you in writing at the signing of this Agreement that the Company has not obtained such Lockup Agreement, and you have acknowledged such in writing.
(j) The Company shall apply the net proceeds from 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 substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jk) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior in such a manner as would require the Company to register as an investment company under the Closing Date or, if applicable, Investment Company Act (the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives"1940 Act").
(kl) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lm) Except pursuant 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 exercise stabilization or manipulation of the price of any securities of the Company.
(n) The Selling Stockholders covenant and agree with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of Common Stock or other capital stock options existing prior to of the execution Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of this Agreement Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as contemplated hereby or by to which such Selling Stockholder has the Prospectus, right to direct the Company and the Selling Stockholders disposition of) will not, be made for a period of ninety (90) 90 days after the Effective Date date of the Registration Statementthis Agreement, offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSDeutsche Bank Securities Inc.
(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, which consent each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date or Option Closing Date, as applicable, 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 Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to any successor constitute, the stabilization or manipulation of the Company, including without limitation, any entity into which the Company might consolidate or mergeprice of Common Stock,.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration StatementStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), but without exhibitsincluding documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 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 any document of 1934 which would be deemed to shall be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 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 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.
(viii) No offering, sale, 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) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company will furnish to the Representatives (a) concurrently otherwise than hereunder or with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheldBT Alex. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.Xxxxx
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations and (b) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually three signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective 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.
(gvii) For The Company will, for a period of three 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 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 Exchange Act. 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.
(viii) No offering, sale, 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 agreements for such) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate otherwise than hereunder or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commissionprior written consent of Alex. Xxxxx & Sons Incorporated; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such periodprovided, if however, that the Company shall have active subsidiaries be permitted (A) to grant options to purchase Common Stock under its employee stock option plans, (B) to issue Common Stock upon exercise of currently outstanding options, and (C) to issue shares of Common Stock under its employee stock purchase plan; provided further that no options granted under (A), above, shall vest within 180 days after the foregoing financial statements shall be on a consolidated basis to the extent that the accounts effective date of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidatedRegistration Statement.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(iix) The Company will use its best efforts to list, subject to notice of issuance, the net proceeds from the sale Shares on The Nasdaq National Market.
(x) The Company has caused each officer and director, and certain stockholders of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the RulesCompany to furnish to you, the Company and the Selling Stockholders will not distribute any prospectus on or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date ordate of this Agreement, if applicablea letter or letters, the Option Closing Date will not issue any press releases or other communications directly or indirectly in form and will hold no press conferences with respect substance satisfactory to the CompanyUnderwriters, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Sharespursuant to which each such person shall agree that, without the prior written consent of Alex. Xxxxx & Sons Incorporated, such person will not, directly or indirectly offer, sell, pledge, contract to sell (including any short sale), grant any option to purchase or otherwise dispose of any shares of Common Stock (including, without limitation, shares of Common Stock of the RepresentativesCompany which may be deemed to be beneficially owned by such person on the effective date of the Registration Statement in accordance with the rules and regulations of the Commission and shares of Common Stock which may be issued upon exercise of a stock option or warrant) or enter into any Hedging Transaction (as defined therein) relating to the Common Stock for a period of 180 days after the effective date of the Registration Statement ("Lockup Agreements") except as may otherwise be permitted under the Lockup Agreements.
(kxi) 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 the Subsidiaries to register as an investment company under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) Without the prior written consent of Alex. Xxxxx & Sons Incorporated, such Selling Stockholder will not, for a period of ninety (90) days after the Effective Date of the Registration Statementdirectly or indirectly offer, offer to sell, pledge, contract to sellsell (including any short sale), sell grant any option to purchase or otherwise dispose of any shares of the Company's common stock or securities convertible into Common Stock (including, without limitation, shares of Common Stock of the Company's common Company which may be deemed to be beneficially owned by such Selling Stockholder on the effective date of the Registration Statement in accordance with the rules and regulations of the Commission and shares of Common Stock which may be issued upon exercise of a stock without option or warrant) or enter into any Hedging Transaction (as defined below) relating to the prior written consent Common Stock (each of BRS, which consent will not be unreasonably withheldthe foregoing referred to as a "Disposition") for a period of 180 days after the effective date of the Registration Statement (the "Lockup Period"). The foregoing covenants and agreements shall apply restriction is expressly intended to preclude such Selling Stockholder from engaging in any successor of the Company, including without limitation, any entity into Hedging Transaction or other transaction which the Company might consolidate is designed to or merge.reasonably expected to lead to or result in a
Appears in 1 contract
Samples: Underwriting Agreement (Powerwave Technologies Inc)
Covenants of the Company and the Selling Stockholders. The Company covenants Offerors jointly and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), severally agree with each of the several Underwriters thatas follows:
(a) The Company Offerors will use its their best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective as promptly as possible; they will notify the Representative, promptly after they shall receive notice thereof, of the time when the Registration Statement or any subsequent amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed; if the Offerors omitted information from the Registration Statement at the time it was originally declared effective in reliance upon Rule 430A(a), the Offerors will provide evidence satisfactory to the Representative that the Prospectus contains such information and has been filed, within the time period prescribed, with the Commission pursuant to subparagraph (1) or (4) of Rule 424(b) of the Rules and Regulations under the Act or as part of a post-effective amendment to such Registration Statement as originally declared effective which is declared effective by the Commission; if for any reason the filing of the final form of Prospectus is required under Rule 424(b)(3) of the Rules and Regulations under the Act, they will notprovide evidence satisfactory to the Representative that the Prospectus contains such information and has been filed with the Commission within the time period prescribed; they will notify the Representative promptly of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; promptly upon the Representative's request, either before they will prepare and file with the Commission any amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel for the Underwriters ("Underwriters' Counsel"), may be necessary or advisable so as to comply with all applicable laws and regulations (including, without limitation, Section 11 under the Act and Rule 10b-5 under the Exchange Act) in connection with the distribution of the Designated Preferred Securities by the Underwriters; they will promptly prepare and file with the Commission, and promptly notify the Representative of the filing of, any amendments or supplements to the Registration Statement or Prospectus which may be necessary to correct any statements or omissions, if, at any time when a prospectus relating to the Designated Preferred Securities is required to be delivered under the Act, any event shall have occurred as a result of which the Prospectus or any other prospectus relating to the Designated Preferred Securities as then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; in case any Underwriter is required so as to comply with all applicable laws and regulations (including, without limitation, Section 11 under the Act and Rule 10b-5 under the Exchange Act) to deliver a prospectus nine months or more after effectivenessthe effective date of the Registration Statement in connection with the sale of the Designated Preferred Securities, they will prepare promptly upon request, but at the expense of the Underwriters, such amendment or amendments to the Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act; they will file any no amendment thereto or supplement to the Registration Statement or Prospectus (including a prospectus other than any document required to be filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (Athat upon filing is deemed incorporated therein by reference) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus of which the Representatives shall not previously have been advised and furnished with submitted to the Representative a copy reasonable time prior to the proposed filing thereof or to which the Representatives you shall have reasonably objected object in writing or which is not in compliance with the Act and the Rules and Regulations under the Act and until the distribution of the Designated Preferred Securities pursuant to the Prospectus has been completed, the Offerors will furnish to the Representative at or Rules prior to the filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or the Exchange Act or the rules and regulations thereunderProspectus.
(b) The Company Offerors will advise the Representatives Representative, promptly of any request of the Commission after they shall receive notice or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional informationobtain knowledge thereof, or of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of the Registration Statement or the use of the Prospectus initiation or of the institution threat of any proceedings proceeding for that purpose, or comparable action taken or initiated by any Other Securities Regulator, ; and the Company they will promptly use its reasonable their best efforts to prevent the issuance of any stop order or to obtain their withdrawal at the earliest possible moment if such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if should be issued.
(c) The Company Offerors will use its reasonable their best efforts with the Representatives in endeavoring to qualify the Shares Designated Preferred Securities for offering and sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives Representative may reasonably designate, designate and will make to continue such applications, file such documents, and furnish such information qualifications in effect for so long as may be reasonably required for the purposes of the distribution of the Designated Preferred Securities, except that purpose; PROVIDED, HOWEVER, the Company either Offeror shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation or to file execute a general consent to service of process in any jurisdiction. In each jurisdiction where it is not so in which the Designated Preferred Securities shall have been qualified or required to file such a consent. The Company willas above provided, from time to time, prepare the Offerors will make and file such statements, reports, statements and other documents, reports in each year as are or may be reasonably required to continue by the laws of such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Sharesjurisdiction.
(d) The Company Offerors will deliver tofurnish to the Representative, or upon as soon as available, copies of the order ofRegistration Statement (as filed in EDGAX xxxmat, including exhibits, with the commission's confirmation of filing), each Preliminary Prospectus, the RepresentativesProspectus and any amendment or supplements to such documents, from time including any prospectus prepared to timepermit compliance with Section 10(a)(3) of the Act, all in such quantities as many copies of any Preliminary Prospectus or the Prospectus as the Representatives you may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company Offerors will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, their securityholders as soon as it is practicable to do sopracticable, but in any event not later than the 90th 45th day after following the end of the fiscal quarter first occurring one year after the Effective Datefirst anniversary of the effective date of the Registration Statement, an earnings statement (which will be in reasonable detail, covering a period of at least twelve consecutive months beginning after detail but need not be audited) complying with the Effective Date, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Act and will advise you in writing when such statement has been so made availablecovering a twelve-month period beginning after the effective date of the Registration Statement.
(gf) For a period of three five years from the date of this Agreementhereof, the Company will Offerors shall furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, Representative copies of all reports and communications (financial or otherotherwise) mailed furnished by the Offerors to stockholders; (d) the holders of the Designated Preferred Securities as soon as they are availablea class, copies of all reports and financial statements filed with or furnished to the Commission or filed with any national securities exchange or the Commission; (e) every press release which was released or prepared by the Company; NASDAQ-NM and (f) any additional such other documents, reports and information of a public nature concerning the Company or its business which you and financial conditions of the Offerors as the Representative may reasonably request. During such period, if five year period the Company shall have active subsidiaries the foregoing Offerors' financial statements shall be on a consolidated basis to the extent that the accounts of the Company Offerors and its subsidiaries the Subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) Subsidiary which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ig) The Company Offerors will use apply the net proceeds from the sale of the Shares substantially Designated Preferred Securities being sold by it in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by " in the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the RepresentativesProspectus.
(kh) The Company Offerors will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, and a registrar (which may be the same entity as the transfer agent) for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketPreferred Securities.
(li) Except pursuant If at any time during the 90-day period after the Registration Statement becomes effective, any publication or event relating to or affecting either Offeror shall occur as a result of which in your opinion the market price of the Preferred Securities has been or is likely to be materially affected (regardless of whether such publication or event necessitates a supplement to or amendment of the Prospectus), the Offerors will, after written notice from the Representative advising the Offerors to the exercise effect set forth above, forthwith prepare, consult with the Representative concerning the substance of stock options existing prior and disseminate a press release or other public statement, reasonably satisfactory to the execution Representative, responding to or commenting on such publication or event, consistent with past practice.
(j) For a period ending 180 days from the date of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders Offerors will not, for a period of ninety (90) days after the Effective Date of the Registration Statementwithout your prior written consent, directly or indirectly, offer for sale, sell or agree to sell, contract to sell, sell or otherwise dispose of any shares Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Company's common stock Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into shares of or exchangeable for or that represent the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply right to receive any successor of the Company, including without limitation, any entity into which the Company might consolidate such beneficial interest or mergesubstantially similar securities.
Appears in 1 contract
Samples: Underwriting Agreement (Century Bancorp Capital Trust)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), agrees with each of the several Underwriters thatUnderwriters:
(ai) The Company will use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective as promptly as possible. If the Registration Statement has been declared effective prior to the execution and delivery of this Agreement, the Company will file either (A) 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) or (B) a Term Sheet with the Commission pursuant to and in accordance with Rule 434 not later than the earlier of (i) the second business day following the execution and delivery of this Agreement or (ii) the fifth business day after the date on which the Registration Statement is declared effective. The Company will advise you promptly of any such filing pursuant to Rule 424(b) or Rule 434.
(ii) The Company will not file with the Commission the Prospectus or the amendment referred to in the second sentence of Section 1(a)(i) hereof, any amendment or supplement to the Prospectus, any Term Sheet, any amendment to the Registration Statement or any Rule 462(b) Registration Statement unless you have received a reasonable period of time to review any such proposed amendment or supplement and consented to the filing thereof and will notuse its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon the request of the Representatives or counsel for the Underwriters, either before the Company will promptly prepare and file with the Commission, in accordance with the rules and regulations of the Commission, any amendments to the Registration Statement or after effectivenessany amendments or supplements to the Prospectus or any Term Sheet that may be necessary or advisable in connection with the distribution of the Shares by the several Underwriters and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. If required, the Company will file any amendment thereto or supplement to the Prospectus (including a prospectus filed pursuant to or any Term Sheet with the Commission in the manner and within the time period required by Rule 424(b) which differs from and Rule 434, as applicable, under the Prospectus on file at Act. The Company will advise the Representatives, promptly after receiving notice thereof, of the time when the Original Registration Statement becomes effectiveor any amendment thereto or any Rule 462(b) Registration Statement has been filed or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus declared effective or the Prospectus of which or any amendment or supplement thereto has been filed and will provide evidence to the Representatives shall not previously have been advised and furnished with a copy of each such filing or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the Act or Rules or the Exchange Act or the rules and regulations thereundereffectiveness.
(biii) The Company will advise the Representatives you promptly after receiving notice or obtaining knowledge of any request of the Commission or other securities regulatory agency ("Other Securities Regulator"i) for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement or any Rule 462(b) Registration Statement or any part thereof or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, (ii) the suspension of the institution qualification of the Shares for offer or sale in any jurisdiction or of the initiation or threatening of any proceedings proceeding for that any such purpose, or comparable action taken (iii) any request made by the Commission or initiated by any Other Securities Regulatorsecurities authority of any other jurisdiction for amending the Original Registration Statement or any Rule 462(b) Registration Statement, and for amending or supplementing the Prospectus or for additional information. The Company will use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending and, if any such stop order is issued, to obtain the use withdrawal thereof as promptly as possible.
(iv) If the delivery of a prospectus relating to the Shares is required under the Act at any time prior to the expiration of nine months after the date of the Prospectus and if at such time 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 obtain 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 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 thereofdelivery 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 issuedupon 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.
(cv) The Company promptly from time to time will use its reasonable efforts 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 (including foreign jurisdictions) as the Representatives you may reasonably designate, 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 necessary to complete the distribution of the Shares, provided that purpose; PROVIDED, HOWEVER, 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 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.
(dvi) The Company will deliver topromptly provide you, or upon without charge, (i) four manually executed copies of the order ofOriginal Registration Statement and any Rule 462(b) Registration Statement as originally filed with the Commission and of each amendment thereto, (ii) for each other Underwriter a conformed copy of the RepresentativesOriginal Registration Statement and any Rule 462(b) Registration Statement as originally filed and of each amendment thereto, from time without exhibits, and (iii) so long as a prospectus relating to timethe Shares is required to be delivered under the Act, as many copies of any each Preliminary Prospectus or the Prospectus or any amendment or supplement thereto as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives you may reasonably request.
(evii) During As soon as practicable, but in any event not later than the time necessary to effect the distribution last day of the Sharesthirteenth month after the later of the effective date of the Original Registration Statement and any Rule 462(b) Registration Statement, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than the 90th day after the end of the fiscal quarter first occurring one year after the Effective Date, an earnings statement in reasonable detailof the Company and its subsidiaries, if any, covering a period of at least twelve consecutive 12 months beginning after the Effective Date, later of the effective date of the Original Registration Statement and any Rule 462(b) Registration Statement (which earnings statement shall satisfy the requirements of need not be audited) complying with Section 11(a) of the Act and will advise you in writing when such statement has been so made availablethe rules and regulations thereunder.
(gviii) For During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, the Company 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 (i) the issuance of Common Stock to the stockholders of a company in connection with the acquisition of such company by the Company, provided that each such stockholder agrees not to offer, sell, contract to sell, grant any option for the sale of, or otherwise dispose of, directly or indirectly, such shares of Common Stock for a period continuing to and including the date 90 days after the date of the Prospectus, without the prior written consent of the Underwriters, (ii) the grant and exercise of options pursuant to the Company's directors' option plan, American Medcare 1996 Stock Option Plan, InfoCure Corporation 1996 Stock Option Plan, InfoCure Corporation Employee Stock Purchase Plan and InfoCure Length- of-Service Nonqualified Stock Option Plan (each as described in the Prospectus) in effect at the First Time of Delivery, provided that such options are not exercisable prior to the date 90 days after the date of the Prospectus and (iii) the issuance of Common Stock pursuant to (x) the exercise of currently outstanding options and warrants described in the Prospectus, (y) the conversion of the Company's currently outstanding Series A Preferred Stock and (z) the terms of the notes outstanding in favor Finova Corporation issued in connection with the Company's credit facility and Commercial Computers, Inc., each as described in the Prospectus.
(ix) During a period of three five years from the later of the effective date of this Agreementthe Original Registration Statement or any Rule 462(b) Registration Statement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports you and, upon request, to its stockholders, statements of income each of the Company for each quarter in the form other Underwriters, without charge, (i) copies of all reports or other communications (financial or other) furnished to the Company's stockholders; shareholders, (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (cii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all any reports and financial statements furnished to or filed with the Commission; (e) every press release which was released Commission or prepared by the Company; any national securities exchange, and (fiii) any such additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing and financial statements shall be on a consolidated basis to the extent that the accounts condition of the Company and its subsidiaries are consolidatedsubsidiaries, and shall be accompanied by similar financial statements for any significant subsidiary (if any, as defined by the Act) which is not so consolidatedyou may reasonably request.
(hx) Promptly after Neither the Company is advised thereofnor any of its officers, it directors or affiliates will advise (i) take, directly or indirectly, prior to the Representativestermination of the underwriting syndicate contemplated by this Agreement, and confirm in writingany action designed to cause or to result in, or that might reasonably be expected to constitute, the Registration Statement and stabilization or manipulation of the price of any amendments shall have become effectivesecurity of the Company to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares or (iii) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(ixi) The Company will use apply the net proceeds from the sale of the Shares substantially offering in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by " in the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the RepresentativesProspectus.
(kxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of cause the Shares to be listed on the National Association of Securities Dealers Automated Quotation National Market System ("The Nasdaq National Stock Market"), subject to notice of issuance, at each Time of Delivery and for at least one year from the date hereof.
(lxiii) Except pursuant If at any time during the period beginning on the later of the effective date of the Original Registration Statement or any Rule 462(b) Registration Statement 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 a Quarterly Report on Form 10-Q after such effective date and (B) the date on which the Company first issues a quarterly financial report to stockholders 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 exercise of stock options existing prior Prospectus), the Company will, after written notice from you advising the Company to the execution 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) If the Company elects to rely upon Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated under the Act by the earlier of (i) 10:00 p.m., Washington, D.C. time, on the date of this Agreement and (ii) the time confirmations are sent or given, as contemplated hereby or specified by the Prospectus, the Company Rule 462(b)(2).
(xv) All offers and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares sales of the Company's common capital stock prior the date hereof were at all relevant times duly registered under the Act or securities convertible into shares exempt from the registration requirements of the Company's common stock without the prior written consent Act by reason of BRSSections 3(b), which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate 4(2) or merge.4
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(a) The Company covenants and agrees with the several Underwriters and each of the Selling Stockholders 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations, and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) The Company will advise the Representatives and the Selling Stockholders 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration StatementStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), but without exhibitsincluding documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 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 any document of 1934 which would be deemed to shall be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter in the form furnished any period subsequent to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of period covered by the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and most recent financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm appearing in writing, that the Registration Statement and the Prospectus. 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 to its stockholders or filed with any amendments shall have become effectivesecurities 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 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.
(iviii) The Company will use the net proceeds from the No offering, sale, short sale or other disposition of any shares of Common Stock of the Shares substantially in Company (other than shares issuable upon the manner set forth in exercise of currently outstanding options and warrants) or other securities convertible into or exchangeable or exerciseable 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 Prospectus under the caption "Use date of Proceeds."
(j) Other than as permitted this Agreement, directly or indirectly, by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus otherwise than hereunder or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheldBT Alex. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.Xxxxx
Appears in 1 contract
Samples: Underwriting Agreement (Hanger Orthopedic Group Inc)
Covenants of the Company and the Selling Stockholders. (A) The Company covenants and agreesCompany, and where specifically stated to be a covenant of the Option Selling Stockholders covenant and agreeStockholders, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters thatOption Selling Stockholders, covenants and agrees as follows:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to shall prepare the Prospectus in a form approved by the Representatives and file such Prospectus (including or a prospectus filed term sheet as permitted by Rule 434(b) under the Securities Act) pursuant to Rule 424(b) which differs from under the Prospectus Securities Act not later than the Commission's close of business on file at the time second business day following the execution and delivery of this Agreement, or, if such second business day would be more than fifteen business days after the Effective Date of the Registration Statement becomes effectiveor any post-effective amendment thereto, such earlier date as would permit such Prospectus to be filed without filing a post-effective amendment as set 24 forth in Rule 430A(a)(3) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration StatementSecurities Act, the Preliminary Prospectus or the Prospectus of which the Representatives and 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 Act or Rules or the Exchange Act or the rules and regulations thereunder.
(b) The Company will promptly advise the Representatives promptly (i) when the Registration Statement shall have become effective, (ii) when any amendment thereof shall have become effective, (iii) of any request of by the Commission or other securities regulatory agency ("Other Securities Regulator") for any amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, (iv) of the prevention or suspension of the use of any preliminary prospectus or the Prospectus or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use institution or threatening of any proceeding for that purpose and (v) of the Prospectus or receipt by the Company of any notification with respect to the suspension of the institution qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceedings proceeding for that such purpose, . The Company shall not file any amendment of the Registration Statement or comparable action taken amendment or initiated by any Other Securities Regulator, and supplement to the Prospectus unless the Company will has furnished the Representatives a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if issued, to obtain as soon as possible the lifting withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, 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 issuedit shall be necessary to amend or supplement the Prospectus to comply with the Securities Act or the Rules, the Company promptly shall (i) notify the Representatives and (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 6(A), an amendment or supplement which shall correct such statement or omission or an amendment which shall effect such compliance.
(c) The Company will use shall make generally available to its reasonable efforts security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions Company's fiscal year), an earnings statement (including foreign jurisdictions) as the Representatives may reasonably designate, and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; PROVIDED, HOWEVER, the Company shall which need 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 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 audited) of the SharesCompany, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) The Company will deliver toshall furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including all exhibits thereto and amendments thereof) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and all amendments thereof and, so long as delivery of a prospectus by an Underwriter or upon dealer may be required by the order of, Securities Act or the Representatives, from time to timeRules, as many copies of any Preliminary Prospectus or preliminary prospectus and the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy of the Registration Statement any amendments thereof and all amendments supplements thereto including all exhibits filed therewith and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During The Company shall cooperate with the time necessary Representatives and their counsel in endeavoring to qualify the Shares for offer and sale under the Securities or "Blue Sky" laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications in effect so long as required for the initial distribution of the SharesShares by the Underwriters; provided, however, that neither the Company nor any Option Selling Stockholder shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time be required in connection therewith to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur qualify as a result foreign corporation or to execute a general consent to service of which, process in the judgment of the Company any jurisdiction or subject itself to taxation as doing business in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus any jurisdiction 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 which it is necessary at any time to amend or supplement the Prospectus to comply with any law or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawnot otherwise subject.
(f) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than the 90th day after the end of the fiscal quarter first occurring one year after the Effective Date, an earnings statement in reasonable detail, covering a period of at least twelve consecutive months beginning after the Effective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and will advise you in writing when such statement has been so made available.
(g) For a period of three two years from after the date of this Agreement, the Company will shall 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 distribute generally to the holders of any class of its capital stock and furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate each annual or other report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed it shall be required to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed file with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(hg) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without Without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) 180 days after the Effective Date date of this Agreement, neither the Registration StatementCompany nor the Option Selling Stockholders shall issue, offer to sell, contract to sell, sell distribute or register with the Commission, or otherwise encumber or dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), provided however, that the Company may issue shares of Common Stock or Class B Common Stock, as the case may be, (i) in connection with the offering of the Firm Shares and the Option Shares, (ii) pursuant to any employee benefit plan, (iii) upon conversion of the Notes (as defined in the Prospectus) or exercise of options or warrants outstanding on the date hereof, (iv) upon conversion of shares of Common Stock into Class B Common Stock pursuant to the terms of the Company's common stock or securities convertible into shares Restated Certificate of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.Incorporation (following amendment
Appears in 1 contract
Samples: Underwriting Agreement (All American Communications Inc)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), agrees with each of the several Underwriters that:
(ai) The Company will use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto to become effective as promptly as possible. If required, the Company will file the Prospectus, any Integrated Prospectus or any Term Sheet that constitutes a part thereof and will not, either before or after effectiveness, file any amendment or supplement thereto with the Commission in the manner and within the time period required by Rule 434 and 424(b) under the Act. During any time when a prospectus relating to the Securities is required to be delivered under the Act, the Company (A) will comply with all requirements imposed upon it by the Act, the Exchange Act and the Trust Indenture Act and the respective rules and regulations of the Commission thereunder to the extent necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and of each of the Prospectus and any Integrated Prospectus, as then amended or supplemented, and (B) will not file with the Commission the prospectus or the amendment referred to in the third sentence of Section 2(a)(i) hereof, any amendment or supplement to the Prospectus (including a such prospectus filed pursuant or any amendment to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effectiveor any Rule 462(b) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus Statement of which the Representatives shall not previously have been advised and furnished with a copy or for a reasonable period of time prior to the proposed filing and as to which filing the Representatives shall not have reasonably objected in writing or which is not in compliance given their consent. The Company will prepare and file with the Act or Rules or the Exchange Act or Commission, in accordance with the rules and regulations thereunderof the Commission, promptly upon request by the Representatives or counsel for the Underwriters, any amendments to the Registration Statement or amendments or supplements to the Prospectus and any Integrated Prospectus that may be necessary or advisable in connection with the distribution of the Securities by the several Underwriters, and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective by the Commission as promptly as possible. The Company will advise the Representatives, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereto has been filed or declared effective or the Prospectus and any Integrated Prospectus or any amendment or supplement thereto has been filed and will provide evidence satisfactory to the Representatives of each such filing or effectiveness.
(bii) The Company will advise the Representatives Representatives, promptly after receiving notice or obtaining knowledge thereof, of any request of the Commission or other securities regulatory agency ("Other Securities Regulator"A) for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order suspending the effectiveness of the Original Registration Statement or any Rule 462(b) Registration Statement or any post-effective amendment thereto or any order directed at any document incorporated by reference in the Registration Statement or if the Prospectus and any required Integrated Prospectus are or any amendment or supplement thereto or any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus and any Integrated Prospectus or any amendment or supplement thereto, (B) the suspension of the institution qualification of the Securities for offering or sale in any jurisdiction, (C) the institution, threatening or contemplation of any proceedings proceeding for that purposeany such purpose or (D) any request made by the Commission for amending the Original Registration Statement or any Rule 462(b) Registration Statement, for amending or comparable action taken supplementing any Preliminary Prospectus, the Prospectus and any Integrated Prospectus or initiated by any Other Securities Regulator, and the for additional information. The Company will use its reasonable best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if any such stop order is issued, to obtain the withdrawal thereof as soon promptly as possible the lifting thereof, if issuedpossible.
(ciii) The Company will use its reasonable efforts with arrange for the Representatives in endeavoring to qualify qualification of the Shares Securities for offering and sale under the securities or blue sky laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, designate 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 necessary to complete the distribution of the Securities, provided, however, that purpose; PROVIDED, HOWEVER, in connection therewith the Company shall not be required to qualify as a foreign corporation or to file execute a general consent to service of process in any jurisdiction where it is not 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.
(div) The Company will deliver toIf, at any time prior to the later of (A) the final date when a prospectus relating to the Securities is required to be delivered under the Act or upon (B) the order ofOption Closing Date, any event occurs as a result of which either the Representatives, from time to timeProspectus or any Integrated Prospectus, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares as many copies of the Prospectus in final form, or as thereafter then amended or supplemented, as the Representatives may reasonably request. The Company will deliver would include any untrue statement of a material fact or omit to each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time state a material fact necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 purchaserunder which they were made, not misleading, or, or if for any other reason it is necessary at any time to amend or supplement the Prospectus to comply with or any law or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Integrated Prospectus in order to comply with the Act, the Exchange Act or the Exchange Actrespective rules or regulations of the Commission thereunder, the Company will promptly will notify the Representatives thereof and, subject to the Representatives' prior reviewSection 5(a) hereof, will prepare and file with the Commission and any appropriate Other Securities Regulator Commission, at the Company's expense, an appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus or file any Integrated Prospectus that corrects such document (at the expense of the Company) so that the Prospectus as so amended statement or supplemented will not, in light of the circumstances when it is so delivered, be misleading, omission or so that the Prospectus will comply with the laweffects such compliance.
(fv) The Company will, without charge, provide (A) to the Representatives and to counsel for the Underwriters a signed copy of the registration statement originally filed with respect to the Securities and each amendment thereto (in each case including exhibits thereto) or any Rule 462(b) Registration Statement, certified by the Secretary or an Assistant Secretary of the Company to be true and complete copies thereof as filed with the Commission by electronic transmission, (B) to each other Underwriter, a conformed copy of such registration statement or any Rule 462(b) Registration Statement and each amendment thereto (in each case without exhibits thereto) and (C) so long as a prospectus relating to the Securities is required to be delivered under the Act, as many copies of each Preliminary Prospectus, the Prospectus or any Integrated Prospectus or any amendment or supplement thereto as the Representatives may reasonably request; without limiting the application of clause (C) of this sentence, the Company, not later than (I) 6:00 PM, New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 10:00 AM, New York City time on such date or (II) 2:00 PM, New York City time, on the business day following the date of determination of the public offering price, if such determination occurred after 10:00 AM, New York City time, on such date, will deliver to the Underwriters, without charge, as many copies of the Prospectus and any amendment or supplement thereto as the Representatives may reasonably request for purposes of confirming orders that are expected to settle on the Firm Closing Date.
(vi) The Company, as soon as practicable, will make generally available to its security holders in securityholders and to the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than the 90th day after the end Representatives a consolidated earnings statement of the fiscal quarter first occurring one year after Company and its subsidiaries that satisfies the Effective Date, an earnings statement in reasonable detail, covering a period of at least twelve consecutive months beginning after the Effective Date, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Act and will advise you in writing when such statement has been so made availableRule 158 thereunder.
(g) For a period of three years from the date of this Agreement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ivii) The Company will use apply the net proceeds from the sale of the Shares substantially in the manner Securities as set forth in the Prospectus under the caption "Use of Proceeds" in the Preliminary Prospectus, the Prospectus or any Integrated Prospectus."
(jviii) Other than as permitted by the Act and the RulesThe Company will not, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Sharesindirectly, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent andPrudential Securities Incorporated, if necessary under the jurisdiction of incorporation on behalf of the CompanyUnderwriters, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectusoffer, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statementsell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise sell or otherwise dispose (or announce any offer, sale, offer of sale, contract of sale, pledge, grant of any option to purchase or other sale or disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, shares of Common Stock for a period of 180 days after the date hereof, except pursuant to this Agreement and except for issuances pursuant to the exercise of employee stock options outstanding on the date hereof, pursuant to the Company's common stock dividend reinvestment plan or pursuant to the terms of convertible securities convertible into shares of the CompanyCompany outstanding on the date hereof.
(ix) The Company will not, directly or indirectly, (A) take any action designed to cause or to result in, or that has constituted or which 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 the Securities or (B) (I) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (II) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Securities by the Selling Stockholders under this Agreement).
(x) The Company will obtain the agreements described in Section 7(f) hereof prior to the Firm Closing Date.
(xi) If at any time during the 25-day period after the Registration Statement becomes effective or the period prior to the Option Closing Date, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your 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 a supplement to or amendment of the Prospectus and any Integrated Prospectus), the Company will, after 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.
(xii) If the Company elects to rely on Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on the date of this Agreement and (ii) the time confirmations are sent or given, as specified by Rule 462(b)(2).
(xiii) The Company will cause the Securities to be duly included for quotation on the Nasdaq Stock Market's common stock National Market (the "Nasdaq National Market") prior to the Firm Closing Date. The Company will ensure that the Securities remain included for quotation on the Nasdaq National Market following the Firm Closing Date.
(b) Each Selling Stockholder covenants and agrees with each of the Underwriters that:
(i) Such Selling Stockholder will not, directly or indirectly, (A) take any action designed to cause or to result in, or that has constituted or which 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 the Securities or (B) (I) sell, bid for, purchase, or pay anyone any compensation for soliciting purchases of, the Securities or (II) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company (except for the sale of Securities by the Selling Stockholder under this Agreement).
(ii) Such Group 1 Selling Stockholders will not, directly or indirectly, without the prior written consent of BRSPrudential Securities Incorporated, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply on behalf of the Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any successor option to purchase or otherwise sell or dispose (or announce any offer, sale, offer of sale, contract of sale, pledge, grant of any option to purchase or other sale or disposition) of any shares of Common Stock or any securities convertible into, or exchangeable or exercisable for, Common Stock or other stock of the Company, including without limitation, or any entity into which right to purchase or acquire Common Stock or other capital stock of the Company might consolidate or mergefor a period of 180 days after the date hereof, except pursuant to this Agreement.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) The Company will use its best efforts to cause (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 to become effective and will notin reliance on Rules 430A, either before 430B or after effectiveness430C under the Act, (B) not file any amendment thereto to the Registration Statement or distribute an amendment or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from General Disclosure Package or the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) The Company will advise the Representatives promptly of (i) not make any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or for any additional information, or of that would otherwise constitute a "free writing prospectus" (as defined in Rule 405 under the issuance Act) required to be filed by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Company will use its 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.
(c) The Company will use its reasonable efforts with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; PROVIDED, HOWEVER, 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 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.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders in the manner contemplated by under Rule 158(b) 433 under the Act, as soon as it is practicable to do so, but in any event not later than Act unless the 90th day after the end of the fiscal quarter first occurring one year after the Effective Date, an earnings statement in reasonable detail, covering a period of at least twelve consecutive months beginning after the Effective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and will advise you Representatives approve its use in writing when such statement has been so made available.
prior to first use (g) For a period of three years from the date of this Agreement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholderseach, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants"Permitted Free Writing Prospectus"); (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent provided that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
Representatives shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule V hereto, (kii) 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 maintain a transfer agent and, if necessary satisfy the conditions in Rule 433 under the jurisdiction of incorporation of Act to avoid a requirement to file with the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommission any electronic road show.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) The Company will (A) use its best reasonable efforts to cause the Registration Statement to become effective or, if the procedure in Rule 430A of the Rules and will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration StatementStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), but without exhibitsincluding documents incorporated by reference therein, and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 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 any document which would be deemed to shall be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter in the form furnished any period subsequent to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of period covered by the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and most recent financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm appearing in writing, that the Registration Statement and any amendments shall have become effectivethe Prospectus.
(viii) No offering, sale, 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) will be made for a period of at least 90 days after the date of this Agreement (such period is subject to extension as provided below), directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Deutsche Bank Securities Inc. (“DBSI”). If (1) during the last 17 days of the 90-day period commencing the day after the date of this Agreement (the “Initial Lock-Up Period”), (x) the Company releases earnings results or (y) material news or a material event relating to the Company occurs, or (2) prior to the expiration of the Initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period following the last day of the Initial Lock-Up Period, then with respect to clause (1), the Initial Lock-Up Period will be extended 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, or with respect to clause (2), the Lock-Up Period will be extended until the earlier of (i) the expiration of the 18-day period beginning on the date of the announcement that the Company will release earnings results or (ii) the expiration of the 2-day period beginning on the date of the release of the earnings results, unless, in each case, the Representatives waive, in writing, such extension. The foregoing shall not apply to (i) the Firm Shares; (ii) the exercise of an option or warrant; (iii) an employee benefit plan that has been adopted by the Company prior to the date hereof, provided that the terms of each such employee benefit plan have been disclosed in the Prospectus; or (iv) the issuance by the Company of Common Stock or securities convertible or exchangeable into common stock in connection with any (A) mergers or acquisitions of securities, businesses, property or other assets, (B) joint ventures or other strategic corporate transactions, or (C) any other transaction, the primary purpose of which is not to raise capital, but only if the Company engages in good faith consultation with Deutsche Bank Securities Inc. with regard to transactions of any of the foregoing types and the total number of shares to be issued in the transaction (on an as converted basis if the security issued is not Common Stock) is less than 10% of the total number of shares of the Company’s Common Stock then outstanding.
(ix) The Company will use the net proceeds from the sale its reasonable best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company shall use its reasonable best efforts to cause each director, Xxxxxxx Xxxxxxxxxx, Xxxxxxx and Xxxxxxx Xxxxxxx and each entity affiliated with Xxxxxx XX II, L.P. to furnish to you, on or prior to the date of this agreement, a letter or letters, substantially in the manner set forth in the Prospectus under the caption "Use form of Proceeds."
(j) Other than as permitted by the Act and the RulesExhibit B hereto, 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 and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities 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 offering registration for the offer or sale of any of the Sharesforegoing (or as to which such person has the right to direct the disposition of) for a period of at least 90 days after the date of this Agreement (such period is subject to extension as provided in Exhibit B), without directly or indirectly, except with the prior written consent of the RepresentativesDBSI (“Lockup Agreements”).
(kxi) 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 under the 1940 Act.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant 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 exercise stabilization or manipulation of stock options existing prior the price of any securities of the Company.
(xv) The Company shall at all times comply in all material respects with (i) all provisions of the Xxxxxxxx-Xxxxx Act that are effective and as to which the execution of this Agreement Company is required to be in compliance, and (ii) all rules and regulations promulgated thereunder or implementing the provisions thereof that are effective and as contemplated hereby or by to which the ProspectusCompany is required to be in compliance.
(xvi) By January 31, 2005, the Company and will obtain confirmation in writing, from the relevant governmental authorities, that the Subsidiaries identified in Exhibit A with an asterisk are in good standing in the country where they are incorporated.
(b) Each of the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of 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 Stockholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Stockholder has the right to direct the disposition of) will not, be made for a period of ninety (90) at least 90 days after the Effective Date date of the Registration Statementthis Agreement (such period is subject to extension as described in Section 4(a)(viii) above), offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSDBSI.
(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, which consent each of the Selling Stockholders 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 Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Niku Corp)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) The Company will use its best efforts to cause (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 to become effective and will notin reliance on Rules 430A, either before 430B or after effectiveness430C under the Act, (B) not file any amendment thereto to the Registration Statement or distribute an amendment or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus General Disclosure Package or the Prospectus 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 in all material respects with the Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the earlier of the termination of the offering of the Shares by the Underwriters pursuant to this Agreement or the Exchange termination of this Agreement.
(ii) The Company will (A) 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, (B) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (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 (D) not take any action that would result in an Underwriter or the rules and regulations 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.
(biii) 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) when any supplement to the Prospectus, any Issuer Free Writing Prospectus or any Testing-the-Waters Writing or any amendment to the Prospectus has been filed or distributed, (D) of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional informationinformation including, or but not limited to, any request for information concerning any Testing-the-Waters Writing, and (E) 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, the Prospectus or any Testing-the-Waters Writing, or of the institution of any proceedings for that purpose, purpose or comparable action taken or initiated by any Other Securities Regulator, and pursuant to Section 8A of the Act. The Company will use its reasonable 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.
(cv) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(dvi) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time 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 necessary when delivery of a Prospectus (or, in lieu thereof, the notice referred to effect under Rule 173(a) under the distribution of Act) (the Shares “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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(evii) During The Company will comply with the time necessary Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the ProspectusProspectus so long as the offering and this agreement are not terminated. If, If during the period necessary in which a prospectus (or, in lieu thereof, the notice referred to effect under Rule 173(a) under the distribution of the SharesAct) 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fviii) 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 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 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 in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective 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.
(gx) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter any period subsequent to the period covered by the most recent financial statements appearing in the form furnished Registration Statement, the General Disclosure Package and the Prospectus; provided that the reports and information described in this subsection (x) shall only be provided to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of Underwriters if such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to information are not available on the Electronic Data Gathering Analysis and Retrieval (XXXXX) system or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated’s website.
(hxi) Promptly For a period of 180 days after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale date of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the RulesProspectus, the Company and the Selling Stockholders will not distribute (A) offer, pledge, sell, contract to sell, sell any prospectus option or offering materials in connection contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, or file with the offering and sale Commission a registration statement under the Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than pursuant to equity incentive plans as in existence on the date of this Agreement or pursuant to the exercise or conversion of warrants or convertible securities outstanding as of the Shares and prior date of this Agreement), or publicly disclose the intention to the Closing Date ormake any such offer, if applicablesale, the Option Closing Date will not issue pledge, disposition or filing, or (B) enter into any press releases swap or other communications directly agreement that transfers, in whole or indirectly and will hold no press conferences with respect to the Companyin part, the financial condition, results of operations, business, properties, assets or liabilities any of the Company, or the offering economic consequences of ownership of the SharesCommon Stock or any such other securities, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of the Representatives. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the 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.
(kxii) The Company will use its best efforts to list the Shares, subject to notice of issuance, on the Nasdaq Stock Market.
(xiii) The Company has caused each officer and director of the Company and the additional securityholders of the Company specified on Schedule VII 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) If the Representatives agree to release or waive the restrictions set forth in a Lockup Agreement for an officer or director of the Company and the Representatives provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two business days before the effective date of the release or waiver.
(xv) 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.
(xvi) 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.
(xvii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and the Common Stock.
(xviii) The Company will use its best efforts not take, directly or indirectly, any action designed to maintain cause or result in, or that has constituted or might reasonably be expected to constitute, the listing stabilization or manipulation of the price of any securities of the Company.
(xix) 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 Shares on within the Nasdaq National Marketmeaning of the Act and (b) completion of the restricted period referred to in Section 4(a)(xi) hereof.
(lb) Except pursuant to the exercise Each of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) Such Selling Stockholder has executed and delivered the Lockup Agreement and such Lockup Agreement remains in full force and effect.
(ii) In order to document the Underwriters’ compliance with the reporting and withholding obligations of U.S. Treasury Regulations, with respect to the transactions herein contemplated, each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date a properly completed and executed applicable 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 Stockholder will notnot take, for a period 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 ninety the price of any securities of the Company.
(90iv) days after Such Selling Stockholder 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 Effective Date 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 Stockholder 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 Stockholder in the Registration Statement, offer to sell, contract to sell, sell the Prospectus or otherwise dispose of any shares of document comprising the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or mergeGeneral Disclosure Package.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Peregrine Semiconductor Corp)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 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 Exchange Act. 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.
(viii) No offering, sale, 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) will be made for a period of one year after the date of this Agreement, directly or indirectly, by the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished otherwise than hereunder or pursuant to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate Omnibus Stock Plan or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial Employee Stock Purchase Plan or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information prior written consent of a public nature concerning the Company or its business which you may reasonably requestBT Alex. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidatedXxxxx Incorporated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(iix) The Company will use its best efforts to list the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of ProceedsCommon Stock on The Nasdaq Stock Market."
(jx) Other than as permitted by the Act and the RulesThe Company has caused each outside director to furnish to you, the Company and the Selling Stockholders will not distribute any prospectus on or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date ordate of this agreement, if applicablea letter or letters, in form and substance satisfactory to the Option Closing Date will Underwriters, pursuant to which each such person shall agree not issue to offer, sell, sell short or otherwise dispose of any press releases shares of Common Stock of the Company or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities 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 offering registration for the offer or sale of any of the Sharesforegoing (or as to which such person has the right to direct the disposition of) for a period of one year after the date of this Agreement, without directly or indirectly, except with the prior written consent of BT Alex. Xxxxx Incorporated ("Lockup Agreements") and except upon death of a Selling Stockholder or upon transfer to members of his or her family or to trusts for him, her or their benefit, that are subject to the Representativessame restrictions.
(kxi) The Company will maintain a transfer agent andfor the Common Stock.
(xii) The Company will not take, if necessary under directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the jurisdiction stabilization or manipulation of incorporation the price of any securities of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(lb) Except pursuant to the exercise Each of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of 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 Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Stockholder has the right to direct the disposition of) will not, be made for a period of ninety (90) days one year after the Effective Date date of the Registration Statementthis Agreement, offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSBT Alex. Xxxxx Incorporated and except upon death of a Selling Stockholder or upon transfer to members of his or her family or to trusts for him, which consent her or their benefit that take subject to the same restrictions.
(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 Stockholders has delivered 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).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Samples: Underwriting Agreement (C H Robinson Worldwide Inc)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 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 Exchange Act. 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.
(viii) Except for the offer and sale of shares pursuant to the equity incentive plans of the Company described in the Prospectus, no offering, sale, 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) will be made for a period of one hundred eighty (180) days after the date of this Agreement, directly or indirectly, by the Company will furnish to the Representatives (a) concurrently otherwise than hereunder or with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the RepresentativesAlex. Xxxxx & Sons Incorporated.
(kix) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing list, subject to notice of issuance, the Shares on the The Nasdaq National Market.
(lx) Except pursuant The Company has caused each officer and director and specific stockholders of the Company to the exercise of stock options existing furnish to you, on or prior to the execution date of this Agreement agreement, a letter or as contemplated hereby or by letters, in form and substance satisfactory to the ProspectusUnderwriters, the Company and the Selling Stockholders will notpursuant to which each such person shall agree not to offer, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell short or otherwise dispose of any shares of Common Stock of the Company's common Company or other capital stock or securities convertible into shares of the Company's common stock without , 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 one hundred eighty (180) days after the date of this Agreement, directly or indirectly, except with the prior written consent of BRS, which consent will not be unreasonably withheldAlex. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or mergeXxxxx & Sons Incorporated ("Lockup Agreements").
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The Each of the Company covenants and agrees, and the Selling Stockholders covenant covenants and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters thatagrees as follows:
(a) The Company will will, and the Selling Stockholders shall use its their best efforts to cause the Company to, (i) prepare and timely file with the Commission under Rule 424(b) a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement to become effective in reliance on Rule 430A and (ii) the Company will not, either before or after effectivenessand the Selling Stockholders shall use their best efforts to ensure that the Company does not, file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus of which the Representatives you shall not previously have been advised and furnished with a copy or to which the Representatives you shall have reasonably objected in writing or which is not in compliance with the Act or Rules or the Exchange Securities Act or the rules and regulations thereunderof the Commission.
(b) The Company will advise will, and the Representatives Selling Stockholders shall use their best efforts to cause the Company to, promptly notify each Underwriter in the event of any (i) the request of by the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, (iii) the institution or the use notice of the Prospectus or of the intended institution of any proceedings action or proceeding for that purpose, (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction, or comparable action taken (v) the receipt by the Company of notice of the initiation or initiated by threatening of any Other Securities Regulator, proceeding for such purpose. The Company and the Company Selling Stockholders will use its make every reasonable efforts effort to prevent the issuance of any such a stop order preventing or suspending the use of the Prospectus and and, if such an order shall at any time be issued, to obtain as soon as the withdrawal thereof at the earliest possible the lifting thereof, if issuedmoment.
(c) The Company will, and the Selling Stockholders shall use their best efforts to cause the Company to, (i) on or before the Closing Date, deliver to you a signed copy of the Registration Statement as originally filed and of each amendment thereto filed prior to the time the Registration Statement becomes effective and, promptly upon the filing thereof, a signed copy of each post-effective amendment, if any, to the Registration Statement (together with, in each case, all exhibits thereto unless previously furnished to you) and will use its reasonable efforts also deliver to you, for distribution to the Underwriters, a sufficient number of additional conformed copies of each of the foregoing (but without exhibits) so that one copy of each may be distributed to each Underwriter, (ii) as promptly as possible deliver to you and send to the several Underwriters, at such office or offices as you may designate, as many copies of the Prospectus as you may reasonably request, and (iii) thereafter from time to time during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, likewise send to the Underwriters as many additional copies of the Prospectus and as many copies of any supplement to the Prospectus and of any amended prospectus, filed by the Company with the Representatives Commission, as you may reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in endeavoring which a prospectus is required by law to qualify be delivered by an Underwriter or dealer any event relating to or affecting the Company, or of which the Company shall be advised in writing by you, shall occur as a result of which it is necessary, in the opinion of counsel for the Company or of counsel for the Underwriters, to supplement or amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser of the Shares, the Company will, and the Selling Stockholders shall use their best efforts to cause the Company to, forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus so that the Prospectus as so supplemented or amended will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time such Prospectus is delivered to such purchaser, not misleading. If, after the initial public offering of the Shares by the Underwriters and during such period, the Underwriters shall propose to vary the terms of offering thereof by reason of changes in general market conditions or otherwise, you will advise the Company in writing of the proposed variation, and, if in the opinion either of counsel for the Company or of counsel for the Underwriters such proposed variation requires that the Prospectus be supplemented or amended, the Company will forthwith prepare and file with the Commission a supplement to the Prospectus or an amended prospectus setting forth such variation. The Company authorizes the Underwriters and all dealers to whom any of the Shares may be sold by the several Underwriters to use the Prospectus, as from time to time amended or supplemented, in connection with the sale of the Shares in accordance with the applicable provisions of the Securities Act and the rules and regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to you, for your information, a copy of any post-effective amendment to the Registration Statement and any supplement to the Prospectus or any amended prospectus proposed to be filed.
(f) The Company will cooperate, and the Selling Stockholders shall use their best efforts to cause the Company to cooperate, when and as requested by you, in the qualification of the Shares for offer and sale under the securities or blue sky laws of such jurisdictions (including foreign jurisdictions) as you may designate and, during the Representatives may reasonably designateperiod in which a prospectus is required by law to be delivered by an Underwriter or dealer, and will make in keeping such applicationsqualifications in good standing under said securities or blue sky laws; provided, file such documentshowever, and furnish such information as may be reasonably required for that purpose; PROVIDED, HOWEVER, the Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where in which it is not so qualified or required to file such a consentqualified. The Company will, from time to time, prepare and file such statements, reports, and other documents, documents as are or may be required to continue such qualifications in effect for so long a period as the Representatives you may reasonably request for distribution of the Shares.
(dg) The During a period of five years commencing with the date hereof, the Company will deliver tofurnish to you, or upon the order ofand to each Underwriter who may so request in writing, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date all periodic and thereafter from time special reports furnished to time during the period necessary to effect the distribution stockholders of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments theretoinformation, as documents and reports filed with the Representatives may reasonably requestCommission (including the Report on Form SR required by Rule 463 of the Commission under the Securities Act).
(eh) During Not later than the time necessary to effect 45th day following the distribution end of the Sharesfiscal quarter first occurring after the first anniversary of the Effective Date, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than the 90th day after the end of the fiscal quarter first occurring one year after the Effective Date, an earnings statement in reasonable detailwhich need not be certified by independent certified public accountants unless required by the Securities Act or the rules and regulations thereunder, but which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, covering a period of at least twelve consecutive months beginning after with the day immediately succeeding the Effective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and will advise you in writing when such statement has been so made available.
(i) The Company agrees to pay, and the Selling Stockholders agree to use their best efforts to cause the Company to pay, all costs and expenses incident to the performance of their obligations under this Agreement, including all costs and expenses incident to (i) the preparation, printing and filing with the Commission and the NASD of the Registration Statement, any Preliminary Prospectus and the Prospectus, (ii) the furnishing to the Underwriters and, if applicable, the persons designated by them of copies of any Preliminary Prospectus and of the several documents required by paragraph (c) of this Section 6 to be so furnished, (iii) the printing of this Agreement and related documents delivered to the Underwriters, (iv) the preparation, printing and filing of all supplements and amendments to the Prospectus referred to in paragraph (d) of this Section 6, (v) the furnishing to you and the Underwriters of the reports and information referred to in paragraph (g) For of this Section 6 and (vi) the printing and issuance of stock certificates, including the transfer agent's fees. The Selling Stockholders will pay any transfer taxes incident to the transfer to the Underwriters of the Shares being sold by the Selling Stockholders.
(j) The Company agrees to reimburse you, and the Selling Stockholders shall use their best efforts to cause the Company to reimburse you, for the account of the several Underwriters, for blue sky fees and related disbursements (including reasonable counsel fees and reasonable disbursements and cost of printing memoranda for the Underwriters) paid by or for the account of the Underwriters or their counsel in qualifying the shares under state securities or blue sky laws and in the review of the offering by the NASD.
(k) The Company and the Selling Stockholders acknowledge that the provisions of paragraphs (i) and (j) of this Section are intended to relieve the Underwriters from the payment of the expenses and costs which the Company hereby agrees to pay and shall not affect any agreement which the Company and the Selling Stockholders may make, or may have made, for the sharing of any such expenses and costs.
(l) The Company hereby agrees that, without the prior written consent of X.X. Xxxxxxxxxx & Co., Inc., the Company will not, for a period of three 180 days following the date the Registration Statement becomes effective, directly or indirectly, offer, sell, pledge, contract to sell, grant any option to purchase or otherwise dispose of any shares of Common Stock owned beneficially or otherwise (including, without limitation, shares of Common Stock which may be deemed to be beneficially owned in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock which may be issued upon exercise of a stock option or warrant) or any securities convertible into, derivative of or exercisable or exchangeable for such Common Stock, except for the issuance of shares of Common Stock upon the exercise of options to purchase Common Stock which are outstanding on the date hereof.
(m) If at any time during the 25-day period after the Registration Statement becomes effective any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price for the shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), 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.
(n) The Company is familiar with the Investment Company Act of 1940, as amended, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner to ensure that the Company was not and will not be an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
(o) The Company agrees to maintain directors' and officers' insurance customary for the size and nature of the Company's business for a period of two years from the date of this Agreement.
(p) At the Closing Date, the Company will furnish further issue and sell to the Representatives (a) concurrently with furnishing of such reports or, at its direction, to its stockholdersbona fide officers or partners, statements as described below, for a total purchase price of income $220, warrants (the "Warrants") entitling the holders thereof to purchase up to an aggregate of 220,000 shares of Common Stock (subject to adjustment) (the Company "Warrant Shares") for each quarter in the form furnished a period of four (4) years, such period to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly commence one year after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that effective date of the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner except as otherwise set forth in the Prospectus under Warrant Agreement referred to below). Said Warrants shall contain terms and provisions set forth in the caption "Use Warrant Agreement of Proceeds."
(j) Other than as permitted by the Act and the Rules, even date among the Company and the Selling Stockholders will not distribute any prospectus or offering materials Representatives (the "Warrant Agreement"). As provided in connection with the offering and sale Warrant Agreement, the Representatives may designate that some of all of the Shares Warrants be issued in varying amounts directly to its bona fide officers or partners and prior not to the Closing Date or, Representatives. Such designation will be made by the Representatives only if applicable, it determines that such issuances would not violate the Option Closing Date will not issue any press releases or other communications directly or indirectly rules and will hold no press conferences with respect interpretations of the Board of Governors of the NASD relating to the Companyreview of corporate financing arrangements and subject to applicable federal and state securities laws. As further provided, the financial conditionno transfer, results of operations, business, properties, assets assignment or liabilities hypothecation of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or Warrants shall be made by the Prospectus, the Company and the Selling Stockholders will not, Representatives for a period of ninety (90) days after 12 months from the Effective Date issuance of the Registration StatementWarrants, offer except to sell, contract its bona fide officers or partners and subject to sell, sell or otherwise dispose of any shares of the Company's common stock or applicable federal and state securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or mergelaws.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective 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.
(gvii) For The Company will, for a period of three 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 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 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.
(viii) No offering, sale, 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) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company will furnish otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx Incorporated except for sales of shares pursuant to the Representatives exercise of outstanding stock options under the Company's employee benefit plans, as such employee benefit plans are described in Prospectus.
(aix) concurrently with furnishing of such reports to its stockholdersThe Company has caused each officer and director, statements of income and certain security holders of the Company for each quarter in the form furnished to furnish to you, on or prior to the Company's stockholders; (b) concurrently with furnishing to its stockholdersdate of this agreement, a balance sheet letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to, directly or indirectly, offer, sell, pledge, contract to sell, grant any option to purchase, grant a security interest in, hypothecate or otherwise sell or dispose of any shares of Common Stock of the Company (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by such person in accordance with the rules and regulations of the Commission and shares of Common Stock that may be issued upon the exercise of a stock option or warrant) or any securities convertible into, derivative of or exchangeable or exercisable for Common Stock of the Company, owned directly by such person or as at to which such person has the end power of disposition, in any such case whether owned as of the date of such fiscal year, together with statements letter or acquired thereafter (other than Common Stock purchased in the open market and not otherwise in breach of earnings, stockholders' equity such letter) during the period commencing on the date of such letter and cash flow ending on the close of business on the ninetieth (90th) day after the date of the Company for such fiscal yearProspectus, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed except with the Commission; prior written consent of BT Alex. Xxxxx Incorporated (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated"Lockup Agreements").
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ix) The Company will use shall apply the net proceeds from 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 substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jxi) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to in such a manner as would require the Closing Date or, if applicable, the Option Closing Date will not issue Company or any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the CompanySubsidiaries to register as an investment company under the Investment Company Act of 1940, or as amended (the offering of the Shares, without the prior written consent of the Representatives"1940 Act").
(kxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiii) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) Such Selling Stockholder will not, for a period of ninety (90) days after the Effective Date of the Registration Statementdirectly or indirectly, offer to offer, sell, pledge, contract to sell, grant any option to purchase, grant a security interest in, hypothecate or otherwise sell or otherwise dispose of any shares of Common Stock of the Company's common Company (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by such Selling Stockholder in accordance with the rules and regulations of the Commission and shares of Common Stock that may be issued upon the exercise of a stock option or warrant) or any securities convertible into shares into, derivative of or exchangeable or exercisable for Common Stock of the Company's common stock without , owned directly by such Selling Stockholder or as to which such Selling Stockholder has the power of disposition, in any such case whether owned as of the date hereof or acquired hereafter (other than Common Stock purchased in the open market and not otherwise in breach of such letter) during the period commencing on the date of this Agreement and ending on the close of business on the ninetieth (90th) day after the date of the Prospectus, except with the prior written consent of BRSBT 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, which consent each of the Selling Stockholders 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 Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Unless the requirement is otherwise satisfied, the Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 16 1/2 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim consolidated financial statements of income of the Company for each quarter in the form furnished any period subsequent to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of period covered by the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and most recent financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm appearing in writing, that the Registration Statement and any amendments shall have become effectivethe Prospectus.
(viii) No offering, sale, 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) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company, including any grants of options which are immediately exercisable for some or all of the shares covered by the option within 180 days after the date of this Agreement, otherwise than hereunder or with the prior written consent of BT Alex. Xxxxx Incorporated, except (i) the Company's issuance of Common Stock upon the exercise of warrants and stock options that are presently outstanding and described as such in the Prospectus, or any other issuance of options or Common Stock hereafter under the option or equity incentive plans described in the Prospectus, provided that no such issuance of Common Stock results from any acceleration of vesting of any such security, (ii) the Company's issuance of Common Stock under the employee stock purchase plan described in the Prospectus and (iii) the Company's issuance of shares of Common Stock in acquisitions of other corporations or entities provided that (1) the aggregate number of shares issued in all such acquisitions represents less than 20% of the Company's then outstanding shares of Common Stock, (2) subject to applicable pooling of interests rule, the Company has taken reasonable steps to ensure that such shares may not be resold during the 180 days after the date of the Prospectus and (3) the Company provides written notice to BT Alex. Xxxxx of such acquisition at least five (5) days prior to concluding a term sheet, memorandum of understanding or similar agreement with a party.
(ix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on The Nasdaq Stock Market.
(x) The Company will cause each officer and director and specific stockholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person will 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 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. Xxxxx Incorporated ("Lockup Agreements").
(xi) The Company will apply the net proceeds from of its sale of the Shares as set forth in the Prospectus and will file such reports with the Commission with respect to the sale of the Shares substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jxii) Other than as permitted The Company will not invest, or otherwise use, the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without in such a manner as would require the prior written consent Company or any of the RepresentativesSubsidiaries to register as an investment company under the 1940 Act.
(kxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders Stockholders, severally but not jointly, covenants and agrees with the several Underwriters that:
(i) Such Selling Stockholder will notnot offer, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell short or otherwise dispose of any shares of the Company's common Common Stock or other capital stock or securities convertible into shares of the Company's common stock without Company or other securities convertible, exchangeable or exercisable for Common Stock or derivative of Common Stock owned by such Selling Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which such Selling Stockholder has the right to direct the disposition of) for a period of 180 days after the date of this Agreement, directly or indirectly, otherwise than hereunder or with the prior written consent of BRSBT 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, which consent such Selling Stockholder will 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 Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Hiway Technologies Inc)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in a form approved by the Representatives (which such approval shall not be unreasonably withheld) containing information previously omitted at the time that the Registration Statement became effective in reliance on Rule 430A of the Rules and Regulations and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for any supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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 in which 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, reports and other documents, 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 in connection with the distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration StatementStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), but without exhibitsincluding documents incorporated by reference therein, and of all amendments thereto, as the Representatives Representative may reasonably request.
(ev) During The Company will comply with the time necessary Securities Act and the Rules and Regulations, and the 1934 Act, and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 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 1934 Act any document which would be deemed to shall be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) 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 lawrequirements of the Securities Act.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 to its stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Securities Act or the 1934 Act, as amended. The Company will deliver to the Representatives similar reports with respect to the Company's significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Company's financial statements.
(viii) No offering, sale, contract to sell 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 agreement for such) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company will furnish to otherwise than hereunder or with the Representatives prior written consent of BT Alex. Xxxxx Incorporated, except that the Company (a) concurrently with furnishing may issue shares of such reports to its stockholdersCommon Stock upon the exercise or conversion of other currently outstanding options, statements of income of the Company for each quarter in the form furnished to the Company's stockholderswarrants and other convertible securities; (b) concurrently with furnishing may issue options to purchase shares of Common Stock to its stockholdersdirectors, a balance sheet of the Company as at the end of such fiscal year, together officers and employees in connection with statements of earnings, stockholders' equity its existing stock option plans; and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are availablemay issue shares of Common Stock or securities convertible into, copies or exercisable for, shares of all reports (financial or other) mailed Common Stock pursuant to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidatedan acquisition transaction.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(iix) The Company will use its best efforts to effect the listing of the Shares on The Nasdaq Stock Market ("Nasdaq").
(x) Each officer and director and certain Stockholders of the Company has furnished to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, contract to sell 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 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 and except that the foregoing restrictions shall not apply to a disposition (a) as a bona fide gift; (b) pursuant to the laws of testamentary or interstate descent; or (c) pursuant to a final nonappealable order of a court or other body of competent jurisdiction ("Lockup Agreements").
(xi) The Company shall apply the net proceeds from the of its sale of the Shares substantially in the manner as set forth in the Prospectus under the caption "Use of Proceeds."
(jxii) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to in such a manner as would require the Closing Date or, if applicable, the Option Closing Date will not issue Company or any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or Subsidiaries to register as an investment company under the offering of the Shares, without the prior written consent of the Representatives1940 Act.
(kxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the stabilization or manipulation of the price of any securities of the Company; provided, however, that the Company and shall not be deemed to have taken any action under this Section that is taken by any of the Underwriters.
(b) Each of the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of 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 Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Stockholder has the right to direct the disposition of) will not, be made for a period of ninety (90) 90 days after the Effective Date date of the Registration Statementthis Agreement, offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSBT 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, which consent each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date 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).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Idt Corp)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 substantially in compliance with the Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 written comments from the Commission, provided that the Company shall request any oral comments of the Commission to be provided in writing, (C) of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional material information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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 (not to exceed nine months) as the Representatives may reasonably request for distribution of the Shares.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy and four conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply in all material respects with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three two 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 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.
(viii) No offering, sale, 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) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company will furnish to otherwise than hereunder or with the Representatives (a) concurrently with furnishing prior written consent of such reports to its stockholdersBT Alex. Browx Xxxorporated, statements except for grants of income of the Company for each quarter in the form furnished options pursuant to the Company's stockholders; (b) concurrently with furnishing to its stockholders1997 Long-Term Incentive Plan, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidatedamended.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(iix) The Company will use its reasonable best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and specific shareholders of the Company identified to the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree not to offer, sell, sell short or otherwise dispose (except bona fide gifts and transfers to affiliates as specifically provided in such letters) 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 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 Incorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds from the of its sale of the Shares substantially in the manner as set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the RepresentativesProspectus.
(kxii) The Company shall endeavor in the future to conduct its business in such a manner so as to ensure that the Company or any of the Subsidiaries to will not be an "investment company" or an entity "controlled" by an "investment company" under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant to Until its completion of participation in the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectusdistribution, the Company and 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 for the applicable restricted period required by Regulation M under the Securities Act.
(b) Each of the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of 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 Stockholder or request for the registration for the offer or sale of any of the foregoing (or as to which the Selling Stockholder has the right to direct the disposition of) will not, be made for a period of ninety (90) 90 days after the Effective Date date of the Registration Statementthis Agreement, offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSBT 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, which consent each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date 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).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The Company covenants and, with respect to Section 3(a)(x) only, each Selling Stockholder, severally and agreesnot jointly, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), agree with each of the several Underwriters thatUnderwriter as follows:
(ai) The Company will use its best efforts comply with the requirements of Rule 430B. The Company will promptly transmit copies of the Prospectus, properly completed, and any supplement thereto, to cause the Commission for filing pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed therein (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such Prospectus. The Company will furnish to the Underwriters as many copies of the Prospectus as the Underwriters shall reasonably request. The Company shall pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to on the Prospectus (including cover page of a prospectus filed pursuant to Rule 424(b)).
(ii) which differs from The Company will notify the Prospectus on file at Underwriters and the time Selling Stockholders immediately, and if written notice is requested by the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur Underwriters, confirm such notice in writing as soon as reasonably practicable, of (Ai) the 35th day following the Effective Date or (B) the closing date effectiveness of the Underwriters' purchase of the Option Shares if such document would be deemed any amendment to be incorporated by reference into the Registration Statement, (ii) the Preliminary transmittal to the Commission for filing of any supplement or amendment to the Prospectus or any document to be filed pursuant to the Prospectus of which 1934 Act, (iii) 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 Act or Rules or the Exchange Act or the rules and regulations thereunder.
(b) The Company will advise the Representatives promptly receipt of any comments from the Commission, (iv) any request of by the Commission or other securities regulatory agency ("Other Securities Regulator") for any amendment of to the Registration Statement or for any amendment or supplement to the Prospectus or for any additional information, or of and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution initiation of any proceedings for that purpose, purpose or comparable action taken or initiated by the Company’s receipt of any Other Securities Regulator, notice from the Commission of its objection to the use of an automatic shelf registration statement pursuant to Rule 401(g)(2) under the 1933 Act; and the Company will use its make every reasonable efforts effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if any stop order is issued, to obtain as soon as possible the lifting thereof, if issuedthereof at the earliest possible moment.
(ciii) The Company has given the Underwriters notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations that were made within 48 hours prior to the Applicable Time; the Company will give the Underwriters and the Selling Stockholders notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Underwriters and the Selling Stockholders with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use its reasonable efforts with any such document to which the Representatives Underwriters, the Selling Stockholders, counsel for the Underwriters or counsel for the Selling Stockholders shall reasonably object. At any time when the Prospectus is required to be delivered (or but for the exemption in endeavoring to qualify the Shares for sale Rule 172 under the securities laws 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of such jurisdictions the Shares, the Company will give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement or any amendment, supplement or any revision to either any preliminary prospectus (including foreign jurisdictionsany prospectus included in the Registration Statement at the time the Original Registration Statement was filed or any amendment thereto at the time it became effective) or the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the Underwriters with copies of any such amendment or supplement or other documents proposed to be filed or used a reasonable amount of time prior to such proposed filing or use, as the Representatives case may reasonably designatebe, and will make not file any such applications, file such documents, and furnish such information as may be amendment or supplement or other documents in a form to which the Underwriters or counsel for the Underwriters shall reasonably required for that purpose; PROVIDED, HOWEVERobject. If requested by the Underwriters, the Company shall not be required to qualify as will prepare a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not 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 final term sheet (the Representatives may reasonably request for distribution “Final Term Sheet”) reflecting the final terms of the Sharesoffering and shall file with the Commission such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business within two business days after the date hereof; provided that the Company shall furnish the Underwriters with copies of 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 Underwriters or counsel to the Underwriters shall reasonably object.
(div) The Company has furnished or will deliver toto each Underwriter as many signed and conformed copies of the Original Registration Statement and of each amendment thereto, if any, filed prior to the termination of the initial offering of the Shares (including exhibits filed therewith or upon the order ofincorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as such Underwriter reasonably requests.
(v) The Company has furnished to each Underwriter, the Representatives, from time to timewithout charge, as many copies of any Preliminary Prospectus or each preliminary prospectus as such Underwriter reasonably requested, and the Prospectus Company has furnished to each Underwriter, without charge, as many copies of each Issuer Free Writing Prospectus, if any, as such Underwriter reasonably requested, and the Representatives may reasonably requestCompany hereby consents to the use of such copies of each preliminary prospectus and each Issuer Free Writing Prospectus, if any, by the Underwriters for purposes permitted by the 1933 Act. The Company will deliver tofurnish to each Underwriter, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary when the Prospectus is required to effect be delivered (or but for the distribution exemption in Rule 172 under the 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Shares as many copies of the Prospectus in final formShares, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, Prospectus (as the Representatives amended or supplemented) as such Underwriter may reasonably request.
(e) During request for the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as purposes contemplated by the provisions hereof 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. The Prospectus and any amendments or supplements thereto furnished to the Prospectus. IfUnderwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, during except to the period necessary extent permitted by Regulation S-T.
(vi) If at any time when a prospectus is required to effect be delivered (or but for the distribution exemption in Rule 172 under the 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Shares, Shares any event shall occur or condition exist as a result of whichwhich it is necessary, in the judgment of the Company or in the opinion of counsel for the UnderwritersUnderwriters or counsel for the Company, it becomes necessary to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then the Company will promptly prepare and, subject to Section 3(a)(iii), file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement. If an event or development occurs as a result of which the General Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus it is delivered to a purchaserused, not misleading, orthe Company will promptly notify the Underwriters and will promptly amend or supplement in a manner reasonably satisfactory to the Underwriters, if it is necessary at its own expense, the General Disclosure Package to eliminate or correct such untrue statement or omission. If at any time to amend following the issuance of an Issuer Free Writing Prospectus there occurred or supplement occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the Prospectus to comply with any law or to file under the Exchange Act any document which would be deemed to be incorporated by reference information contained in the Registration Statement (or any other registration statement relating to the Shares) or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to comply with make the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will notstatements therein, in the light of the circumstances when it is so deliveredprevailing at that subsequent time, be not misleading, the Company will promptly notify the Underwriters and will promptly amend or so that supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the Prospectus will comply with the lawconditions in Section 5 hereof.
(fvii) The Company will cooperate with the Underwriters to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Shares; provided, however, that the Company shall not be obligated to file any general consent or otherwise subject itself to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(viii) With respect to each sale of the Shares, the Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do sopracticable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in any event form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning not later than the 90th first day after the end of the Company’s fiscal quarter first occurring one year after next following the Effective Date, an earnings statement “effective date” (as defined in reasonable detail, covering a period of at least twelve consecutive months beginning after the Effective Date, which earnings statement shall satisfy the requirements of Section 11(asuch Rule 158) of the Act and will advise you in writing when such statement has been so made availableRegistration Statement.
(gix) For The Company, during the period when a prospectus is required to be delivered (or but for the exemption in Rule 172 under the 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Shares, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time period prescribed by the 1934 Act and the 1934 Act Regulations.
(x) The Company and each Selling Stockholder represents and agrees that, unless it obtains the prior written consent of three years from the date of this AgreementRepresentatives, such consent not to be unreasonably withheld, and each Underwriter agrees that, unless it obtains the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income prior written consent of the Company for each quarter in and the form furnished other Representatives, such consent not to be unreasonably withheld, it has not made and will not make any offer relating to the Company's stockholders; (b) concurrently with furnishing Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, in each case required to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or be filed with the Commission; (e) every press release which was released or prepared provided, however, that prior to the preparation of the Prospectus or, if applicable, the Final Term Sheet in accordance with Section 3(a)(iii), the Underwriters are authorized to use the information with respect to the final terms of the offering in communications orally conveying information relating to the offering to investors. Any such free writing prospectus consented to by the Company; Company and the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company and each Selling Stockholder represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(fxi) During the period of 45 days from the date of the Prospectus, the Company will not, directly or indirectly, without the prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, (a) issue, sell, offer or agree to sell, grant any additional information option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a “put equivalent position” (within the meaning of a public nature concerning Rule 16a 1(h) under the 1934 Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or interest therein of the Company or of any of its business which you may reasonably request. During such periodsubsidiaries, if other than the Company’s sale of Shares pursuant to this Agreement and the Company’s issuance of Common Stock (i) upon the exercise of presently outstanding options, (ii) in connection with acquisitions by the Company shall have active subsidiaries the foregoing financial statements shall be on or a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidatedsubsidiary, and shall be accompanied by similar financial statements (iii) in connection with the grant, assignment and exercise of options under, or the issuance and sale of shares pursuant to, the New Residential Investment Corp. Nonqualified Stock Option and Incentive Award Plan, as amended from time to time (the “New Residential Award Plan”), as in effect on the date hereof or (b) file a registration statement under the 1933 Act registering shares of Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any significant subsidiary (as defined by interest in shares of Common Stock, except for a registration statement with respect to shares of Common Stock issuable under the Act) which is not so consolidatedNew Residential Award Plan or other presently outstanding options.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ixii) The Company will use its best efforts to list the Shares on the NYSE.
(xiii) The Company will apply the net proceeds from the sale of the Shares substantially in the manner as set forth in the Prospectus under the caption "“Use of Proceeds."
(j) Other than as permitted by ” in the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the RepresentativesProspectus.
(kxiv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain meet the listing requirements to qualify as a REIT under the Code for each of its taxable years for so long as the Board of Directors of the Shares on Company deems it in the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares best interests of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply ’s shareholders to any successor of the Company, including without limitation, any entity into which the Company might consolidate or mergeremain so qualified.
Appears in 1 contract
Samples: Underwriting Agreement (New Residential Investment Corp.)
Covenants of the Company and the Selling Stockholders. The Company covenants Offerors jointly and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), severally agree with each of the several Underwriters thatas follows:
(a) The Company Offerors will use its their best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective as promptly as possible; they will notify the Representative, promptly after they shall receive notice thereof, of the time when the Registration Statement or any subsequent amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed; if the Offerors omitted information from the Registration Statement at the time it was originally declared effective in reliance upon Rule 430A(a), the Offerors will provide evidence satisfactory 13 to the Representative that the Prospectus contains such information and has been filed, within the time period prescribed, with the Commission pursuant to subparagraph (1) or (4) of Rule 424(b) of the Rules and Regulations under the Act or as part of a post-effective amendment to such Registration Statement as originally declared effective which is declared effective by the Commission; if for any reason the filing of the final form of Prospectus is required under Rule 424(b)(3) of the Rules and Regulations under the Act, they will notprovide evidence satisfactory to the Representative that the Prospectus contains such information and has been filed with the Commission within the time period prescribed; they will notify the Representative promptly of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; promptly upon the Representative's request, either before they will prepare and file with the Commission any amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel for the Underwriters ("Underwriters' Counsel"), may be necessary or advisable so as to comply with all applicable laws and regulations (including, without limitation, Section 11 under the Act and Rule 10b-5 under the Exchange Act) in connection with the distribution of the Designated Preferred Securities by the Underwriters; they will promptly prepare and file with the Commission, and promptly notify the Representative of the filing of, any amendments or supplements to the Registration Statement or Prospectus which may be necessary to correct any statements or omissions, if, at any time when a prospectus relating to the Designated Preferred Securities is required to be delivered under the Act, any event shall have occurred as a result of which the Prospectus or any other prospectus relating to the Designated Preferred Securities as then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; in case any Underwriter is required so as to comply with all applicable laws and regulations (including, without limitation, Section 11 under the Act and Rule 10b-5 under the Exchange Act) to deliver a prospectus nine months or more after effectivenessthe effective date of the Registration Statement in connection with the sale of the Designated Preferred Securities, they will prepare promptly upon request, but at the expense of the Underwriters, such amendment or amendments to the Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act; they will file any no amendment thereto or supplement to the Registration Statement or Prospectus (including a prospectus other than any document required to be filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (Athat upon filing is deemed incorporated therein by reference) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus of which the Representatives shall not previously have been advised and furnished with submitted to the Representative a copy reasonable time prior to the proposed filing thereof or to which the Representatives you shall have reasonably objected object in writing or which is not in compliance with the Act and the Rules and Regulations under the Act and until the distribution of the Designated Preferred Securities pursuant to the Prospectus has been completed, the Offerors will furnish to the Representative at or Rules prior to the filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or the Exchange Act or the rules and regulations thereunderProspectus.
(b) The Company Offerors will advise the Representatives Representative, promptly of any request of the Commission after they shall receive notice or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional informationobtain knowledge thereof, or of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of the Registration Statement or the use of the Prospectus initiation or of the institution threat of any proceedings proceeding for that purpose, or comparable action taken or initiated by any Other Securities Regulator, ; and the Company they will promptly use its reasonable their best efforts to prevent the issuance of any stop order or to obtain their withdrawal at the earliest possible moment if such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if should be issued.
(c) The Company Offerors will use its reasonable their best efforts with the Representatives in endeavoring to qualify the Shares 14 Designated Preferred Securities for offering and sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives Representative may reasonably designate, designate and will make to continue such applications, file such documents, and furnish such information qualifications in effect for so long as may be reasonably required for the purposes of the distribution of the Designated Preferred Securities, except that purpose; PROVIDED, HOWEVER, the Company either Offeror shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation or to file execute a general consent to service of process in any jurisdiction. In each jurisdiction where it is not so in which the Designated Preferred Securities shall have been qualified or required to file such a consent. The Company willas above provided, from time to time, prepare the Offerors will make and file such statements, reports, statements and other documents, reports in each year as are or may be reasonably required to continue by the laws of such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Sharesjurisdiction.
(d) The Company Offerors will deliver tofurnish to the Representative, or upon as soon as available, copies of the order ofRegistration Statement (as filed in EDGAX xxxmat, including exhibits, with the commission's confirmation of filing), each Preliminary Prospectus, the RepresentativesProspectus and any amendment or supplements to such documents, from time including any prospectus prepared to timepermit compliance with Section 10(a)(3) of the Act, all in such quantities as many copies of any Preliminary Prospectus or the Prospectus as the Representatives you may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company Offerors will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, their securityholders as soon as it is practicable to do sopracticable, but in any event not later than the 90th 45th day after following the end of the fiscal quarter first occurring one year after the Effective Datefirst anniversary of the effective date of the Registration Statement, an earnings statement (which will be in reasonable detail, covering a period of at least twelve consecutive months beginning after detail but need not be audited) complying with the Effective Date, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Act and will advise you in writing when such statement has been so made availablecovering a twelve-month period beginning after the effective date of the Registration Statement.
(gf) For a period of three five years from the date of this Agreementhereof, the Company will Offerors shall furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, Representative copies of all reports and communications (financial or otherotherwise) mailed furnished by the Offerors to stockholders; (d) the holders of the Designated Preferred Securities as soon as they are availablea class, copies of all reports and financial statements filed with or furnished to the Commission or filed with any national securities exchange or the Commission; (e) every press release which was released or prepared by the Company; NASDAQ-NM and (f) any additional such other documents, reports and information of a public nature concerning the Company or its business which you and financial conditions of the Offerors as the Representative may reasonably request. During such period, if five year period the Company shall have active subsidiaries the foregoing Offerors' financial statements shall be on a consolidated basis to the extent that the accounts of the Company Offerors and its subsidiaries the Subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) Subsidiary which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ig) The Company Offerors will use apply the net proceeds from the sale of the Shares substantially Designated Preferred Securities being sold by it in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by " in the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the RepresentativesProspectus.
(kh) The Company Offerors will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, and a registrar (which may be the same entity as the transfer agent) for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketPreferred Securities.
(li) Except pursuant If at any time during the 90-day period after the Registration Statement becomes effective, any publication or event relating to or affecting either Offeror shall occur as a result of which in your opinion the market price of the Preferred Securities has been or is likely to be materially affected (regardless of whether such publication or event necessitates a supplement to or amendment of the Prospectus), the Offerors will, after written notice from the Representative advising the Offerors to the exercise effect set forth above, forthwith prepare, consult with the Representative concerning the substance of stock options existing prior and disseminate a press release 15 or other public statement, reasonably satisfactory to the execution Representative, responding to or commenting on such publication or event, consistent with past practice.
(j) For a period ending 180 days from the date of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders Offerors will not, for a period of ninety (90) days after the Effective Date of the Registration Statementwithout your prior written consent, directly or indirectly, offer for sale, sell or agree to sell, contract to sell, sell or otherwise dispose of any shares Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Company's common stock Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into shares of or exchangeable for or that represent the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply right to receive any successor of the Company, including without limitation, any entity into which the Company might consolidate such beneficial interest or mergesubstantially similar securities.
Appears in 1 contract
Samples: Underwriting Agreement (Abington Bancorp Capital Trust)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter in the form furnished any period subsequent to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of period covered by the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and most recent financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm appearing in writing, that the Registration Statement and any amendments shall have become effectivethe Prospectus.
(viii) No offering, sale, 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) will be made for a period beginning on the date hereof and continuing to, and including, the date that is 180 days after the date of the final Prospectus relating to the offering contemplated under this Agreement (the “Lock-Up Period”), directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Jefferies, except (i) The Company will use the net proceeds from the sale filing of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus a Registration Statement on Form S-8 or offering materials Form S-8/S-3 in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases an employee stock compensation plan or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities agreement of the Company, (ii) issuances of Common Stock of the Company pursuant to the conversion or exchange of convertible or exchangeable securities or the offering exercise of warrants or non-employee related options, in each case outstanding on the SharesClosing Date, (iii) grants of employee stock options, and the exercise of such options, pursuant to the terms of a plan or instrument disclosed in the Prospectus and (iv) the issuance of shares of Common Stock issued as consideration in connection with an acquisition or acquisitions; provided, however, that with respect to (iv) above, prior to the issuance of such shares the recipients of such shares shall sign an agreement in form and substance reasonably satisfactory to Jefferies under which each such recipient agrees for the remaining Lock-Up Period not offer, sell, sell short or otherwise dispose of any such shares without the prior written consent of the RepresentativesJefferies.
(kix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and Selling Stockholder of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the 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 to which such person has the right to direct the disposition of) for a period of 180 days after the date of the final Prospectus relating to the offering contemplated under this Agreement, directly or indirectly (“Lockup Agreements”), except with the prior written consent of Jefferies.
(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.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant 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) 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 Stockholders covenants and agrees with the several Underwriters that:
(i) Each Selling Stockholder shall have delivered to the exercise of stock options existing Representatives on or prior to the execution date of this Agreement or as contemplated hereby or by the ProspectusLockup Agreement referenced in Section 4(a)(x) hereof.
(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, the Company and each of the Selling Stockholders 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 Stockholder will notnot 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.
(c) Each Selling Stockholder agrees (i) for a period of ninety (90) 180 days after the Effective Date date of the final Prospectus related to the offering contemplated under this Agreement, not to exercise or attempt to exercise any rights such Selling Stockholder may have to register, or cause to be registered, under applicable securities laws, its securities of the Company and (ii) that the registration of such Selling Stockholder’s Shares under the Registration Statement satisfies in full the Company’s obligation to include securities of such Selling Stockholder under such Registration Statement. If, offer during the period of time as in the opinion of counsel for the Underwriters a prospectus is required by law to sellbe delivered in connection with sales by an Underwriter or a dealer, contract there is any change in the information referred to sellin Section 1(b)(iv) above, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent Selling Stockholder will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of immediately notify the Company, including without limitation, any entity into which the Company might consolidate or mergeAttorneys and the Underwriters in writing of such change.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(a) The Company covenants and agrees with the several Underwriters and the Selling Stockholders that:
(i) The Company will use its best efforts to cause (A) prepare and timely file with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement to become effective in reliance on Rule 430A of the Rules and will notRegulations, either before or after effectiveness, and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations. To the extent applicable, the copies of the Registration Statement (including all exhibits filed therewith), any Preliminary Prospectus or Rules or Prospectus furnished to the Exchange Act or Underwriters shall be identical to the rules and regulations thereunder.copies thereof electronically filed with the Commission on EDGAX, xxcept to the extent permitted by Regulation S-T.
(bii) The Company will advise the Representatives promptly (A) when any post-effective amendment to the Registration Statement shall have become effective, (B) of receipt subsequent to the execution hereof of any comments from the Commission, (C) of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, Representatives from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibits, Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested) and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Shares, 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 opinion of counsel for 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 law, the Company promptly will either (A) prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement to the Prospectus or (B) prepare and file with the Commission an appropriate filing under the Exchange Act any document which would be deemed to shall be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(g) For a period of three years from the date of this Agreement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ivii) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will notwill, for a period of ninety 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 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 Exchange Act. 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, such reports and documents shall be identical to any copies thereof electronically filed with the Commission on EDGAX, xxcept to the extent permitted by Regulation S-T.
(90viii) days after the Effective Date of the Registration Statement, offer to sell, contract to sellThe Company will not offer, sell or otherwise dispose of any shares of Common Stock of the Company's common stock Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock of the Company's common stock without Company (or any agreement for such) for a period of 90 days after the date of this Agreement, directly or indirectly, otherwise than hereunder or with the prior written consent of BRSthe Representatives, which consent will not be unreasonably withheld. The foregoing covenants except that the Company may, without such consent, (A) issue shares upon the exercise of options outstanding on the date of this Agreement issued pursuant to its 1986 Stock Option Plan, as amended, 1994 Stock Option Plan, 1994 Director Stock Option Plan, as amended, and agreements shall apply to any successor 1994 Employee Stock Purchase Plan, as amended, (B) issue shares in respect of the Companyacquisition by the Company of the assets or capital stock of another person or entity, including provided, however, that any such shares so issued shall be subject to the restrictions on offers, sales and dispositions of shares set forth in this Section 4(a)(viii) for the remainder of the 90-day period referenced above in this Section, and (C) grant options, offer to sell and sell shares of Common Stock to its employees and directors pursuant to the plans listed in clause (A).
(ix) The Company will use its best efforts to have the Shares authorized for inclusion on the Nasdaq National Market.
(x) The Company has caused each officer and director and certain stockholders of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters (each, a "Lock-Up Agreement"), in form and substance satisfactory to the Underwriters, pursuant to which each such person shall agree to not, otherwise than hereunder or with the prior written consent of BT Alex. Browx Xxxorporated or in accordance with a transfer permitted by such Lock-Up Agreement, directly or indirectly, offer, sell, pledge, contract to sell, grant any option to purchase or otherwise dispose of (i) any of such person's Locked-Up Shares (as defined below) during the period commencing on the date specified in such agreements and ending on the 49th day after the Effective Date (as defined below), (ii) no more than 20% of such person's Locked-Up Shares during the period commencing on the 50th day after the Effective Date and ending on the 89th day after the Effective Date, and (iii) no more than an additional 20% of such person's Locked-Up Shares (for a total of 40%) during the period commencing on the 70th day after the Effective Date and ending on the 89th day after the Effective Date, provided, however, that each former stockholder of DynaSoft AB who is a party to a Lock-Up Agreement (each a "DynaSoft Seller" and collectively, the "DynaSoft Sellers") shall be relieved from such DynaSoft Seller's obligations under his, her or its Lock-Up Agreement if the Closing Date hereunder and payment to the DynaSoft Sellers for such DynaSoft Sellers' Shares has not occurred or, in the case of a payment, been received by the DynaSoft Sellers by November 7, 1997. For purposes of this Section 4(a)(x), "Locked-Up Shares" shall mean any shares of Common Stock (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by such officer, director or stockholder on the date of such letter in accordance with the rules and regulations of the Commission and shares of Common Stock that may be issued upon exercise of a stock option or warrant) or any entity into securities convertible into, derivative of or exercisable or exchangeable for such Common Stock, and "Effective Date" shall mean the date on which the Company might consolidate or mergeRegistration Statement becomes effective under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Security Dynamics Technologies Inc /De/)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter any period subsequent to the period covered by the most recent financial statements appearing in the form furnished to Registration Statement and the Company's stockholders; Prospectus.
(bviii) concurrently with furnishing to its stockholdersNo offering, a balance sheet sale, short sale or other disposition of any shares of Common Stock of the Company as at 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 180 days after the date of this Agreement, directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of BT Alex. Browx Xxxorporated, except for the grant of options to purchase shares of Common Stock pursuant to the 1998 Stock Option, Deferred Stock and Restricted Stock Plan and shares of Common Stock issued pursuant to the exercise of options granted under such plan and the grant of purchase rights and issuance of shares under the 1998 Employee Stock Purchase Plan, provided that such options and grants shall not vest, or the Company shall obtain the written consent of the holder thereof not to transfer such shares, until the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such 180-day period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(iix) The Company will use list, subject to notice of issuance, the Shares on the New York Stock Exchange.
(x) The Company has caused each officer, director, stockholder and optionholder of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each such person agrees, subject to certain limited exceptions set forth therein, not to offer, pledge, sell, contract to sell, sell any option or contract to purchase, sell short, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or enter into any swap or similar agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, for a period commencing on the date of the Prospectus and continuing to a date 180 days after such date, except with the prior written consent of BT Alex. Browx Xxxorporated ("LOCKUP AGREEMENTS").
(xi) The Company has caused each stockholder of the Company to enter into, on or prior to the date of this agreement, an S Corporation Termination, Tax Allocation and Indemnification Agreement substantially in the form filed as an exhibit to the Registration Statement (the "S CORPORATION AGREEMENT").
(xii) The Company shall apply the net proceeds from of its sale of the Shares as set forth in the Prospectus and shall include such disclosure in reports with the Commission with respect to the sale of the Shares substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jxiii) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to in such a manner as would require the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, Company or the offering of Subsidiary to register as an investment company under the Shares, without the prior written consent of the Representatives1940 Act.
(kxiv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketClass A Common Stock.
(lxv) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) The Selling Stockholder will notnot offer, for a period of ninety (90) days after the Effective Date of the Registration Statementpledge, offer to sell, contract to sell, sell any option or contract to purchase, sell short, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of of, directly or indirectly, any shares of the Company's common stock Common Stock or any securities convertible into shares or exercisable or exchangeable for Common Stock, or enter into any swap or similar agreement that transfers, in whole or in part, any of the Company's common stock without economic consequences of ownership of the Common Stock, for a period commencing on the date of the Prospectus and continuing to a date 180 days after such date, otherwise than hereunder or with the prior written consent of BRSAlex. Browx & Xons Incorporated; provided, which consent however, that such restrictions shall not apply to the Shares; and, provided, further, that such restrictions shall not apply to shares of Class A Common Stock purchased by the Selling Stockholder in the open market following the offering of the Shares.
(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, the Selling Stockholder 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) The Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The Company covenants and, with respect to Section 3(a)(x) only, each Selling Stockholder, severally and agreesnot jointly, and the Selling Stockholders covenant and agree, each for himself and agree with respect only to paragraphs (j) and (l), with each of the several Underwriters thatUnderwriter as follows:
(ai) The Company will use its best efforts comply with the requirements of Rule 430B. The Company will promptly transmit copies of the Prospectus, properly completed, and any supplement thereto, to cause the Commission for filing pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed therein (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such Prospectus. The Company will furnish to the Underwriter as many copies of the Prospectus as the Underwriter shall reasonably request. The Company shall pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to on the Prospectus (including cover page of a prospectus filed pursuant to Rule 424(b)).
(ii) which differs from The Company will notify the Prospectus on file at Underwriter and the time Selling Stockholders immediately, and if written notice is requested by the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur Underwriter, confirm such notice in writing as soon as reasonably practicable, of (Ai) the 35th day following the Effective Date or (B) the closing date effectiveness of the Underwriters' purchase of the Option Shares if such document would be deemed any amendment to be incorporated by reference into the Registration Statement, (ii) the Preliminary transmittal to the Commission for filing of any supplement or amendment to the Prospectus or any document to be filed pursuant to the Prospectus of which 1934 Act, (iii) 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 Act or Rules or the Exchange Act or the rules and regulations thereunder.
(b) The Company will advise the Representatives promptly receipt of any comments from the Commission, (iv) any request of by the Commission or other securities regulatory agency ("Other Securities Regulator") for any amendment of to the Registration Statement or for any amendment or supplement to the Prospectus or for any additional information, or of and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution initiation of any proceedings for that purpose, purpose or comparable action taken pursuant to Section 8A of the 1933 Act or initiated by the Company’s receipt of any Other Securities Regulator, notice from the Commission of its objection to the use of an automatic shelf registration statement pursuant to Rule 401(g)(2) under the 1933 Act; and the Company will use its make every reasonable efforts effort to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and and, if any stop order is issued, to obtain as soon as possible the lifting thereof, if issuedthereof at the earliest possible moment.
(ciii) The Company has given the Underwriter notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations that were made within 48 hours prior to the Applicable Time; the Company will give the Underwriter and the Selling Stockholders notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Underwriter and the Selling Stockholders with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Underwriter, the Selling Stockholders, counsel for the Underwriter or counsel for the Selling Stockholders shall reasonably object. At any time when the Prospectus is required to be delivered (or but for the exemption in Rule 172 under the 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Shares, the Company will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement or any amendment, supplement or any revision to either any preliminary prospectus (including any prospectus included in the Registration Statement at the time the Original Registration Statement was filed or any amendment thereto at the time it became effective) or the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the Underwriter with copies of any such amendment or supplement or other documents proposed to be filed or used a reasonable efforts amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or other documents in a form to which the Underwriter or counsel for the Underwriter shall reasonably object. If requested by the Underwriter, the Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the offering and shall file with the Representatives in endeavoring Commission such Final Term Sheet as an “issuer free writing prospectus” pursuant to qualify Rule 433 prior to the close of business within two business days after the date hereof; provided that the Company shall furnish the Underwriter with copies of 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 Underwriter or counsel to the Underwriter shall reasonably object.
(iv) The Company has furnished or will deliver to the Underwriter as many signed and conformed copies of the Original Registration Statement and of each amendment thereto, if any, filed prior to the termination of the initial offering of the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictionsexhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the Representatives may Underwriter reasonably designate, and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; PROVIDED, HOWEVER, 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 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 Sharesrequests.
(dv) The Company will deliver tohas furnished to the Underwriter, or upon the order of, the Representatives, from time to timewithout charge, as many copies of any Preliminary Prospectus or the Prospectus each preliminary prospectus as the Representatives may Underwriter reasonably requestrequested, and the Company has furnished to the Underwriter, without charge, as many copies of each Issuer Free Writing Prospectus, if any, as the Underwriter reasonably requested, and the Company hereby consents to the use of such copies of each preliminary prospectus and each Issuer Free Writing Prospectus, if any, by the Underwriter for purposes permitted by the 1933 Act. The Company will deliver tofurnish to the Underwriter, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary when the Prospectus is required to effect be delivered (or but for the distribution exemption in Rule 172 under the 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Shares as many copies of the Prospectus in final formShares, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver to each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, Prospectus (as amended or supplemented) as the Representatives Underwriter may reasonably request.
(e) During request for the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as purposes contemplated by the provisions hereof 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. The Prospectus and any amendments or supplements thereto furnished to the Prospectus. IfUnderwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, during except to the period necessary extent permitted by Regulation S-T.
(vi) If at any time when a prospectus is required to effect be delivered (or but for the distribution exemption in Rule 172 under the 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Shares, Shares any event shall occur or condition exist as a result of whichwhich it is necessary, in the judgment of the Company or in the opinion of counsel for the UnderwritersUnderwriter or counsel for the Company, it becomes necessary to amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, then the Company will promptly prepare and, subject to Section 3(a)(iii), file with the Commission such amendment or supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Company will furnish to the Underwriter a reasonable number of copies of such amendment or supplement. If an event or development occurs as a result of which the General Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus it is delivered to a purchaserused, not misleading, orthe Company will promptly notify the Underwriter and will promptly amend or supplement in a manner reasonably satisfactory to the Underwriter, if it is necessary at its own expense, the General Disclosure Package to eliminate or correct such untrue statement or omission. If at any time to amend following the issuance of an Issuer Free Writing Prospectus there occurred or supplement occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the Prospectus to comply with any law or to file under the Exchange Act any document which would be deemed to be incorporated by reference information contained in the Registration Statement (or any other registration statement relating to the Shares) or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to comply with make the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will notstatements therein, in the light of the circumstances when it is so deliveredprevailing at that subsequent time, be not misleading, the Company will promptly notify the Underwriter and will promptly amend or so that supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The Underwriter’s delivery of any such amendment or supplement shall not constitute a waiver of any of the Prospectus will comply with the lawconditions in Section 5 hereof.
(fvii) The Company will cooperate with the Underwriter to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Underwriter may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Shares; provided, however, that the Company shall not be obligated to file any general consent or otherwise subject itself to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(viii) With respect to each sale of the Shares, the Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do sopracticable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in any event form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning not later than the 90th first day after the end of the Company’s fiscal quarter first occurring one year after next following the Effective Date, an earnings statement “effective date” (as defined in reasonable detail, covering a period of at least twelve consecutive months beginning after the Effective Date, which earnings statement shall satisfy the requirements of Section 11(asuch Rule 158) of the Act and will advise you in writing when such statement has been so made availableRegistration Statement.
(gix) For The Company, during the period when a prospectus is required to be delivered (or but for the exemption in Rule 172 under the 1933 Act would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Shares, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time period prescribed by the 1934 Act and the 1934 Act Regulations.
(x) The Company and each Selling Stockholder represents and agrees that, unless it obtains the prior written consent of three years from the date of this AgreementUnderwriter, such consent not to be unreasonably withheld, and the Company will furnish to Underwriter agrees that, unless it obtains the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income prior written consent of the Company for and each quarter in the form furnished Selling Stockholder, such consent not to be unreasonably withheld, it has not made and will not make any offer relating to the Company's stockholders; (b) concurrently with furnishing Shares that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, in each case required to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or be filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such periodprovided, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writinghowever, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date preparation of the Prospectus or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences Final Term Sheet in accordance with Section 3(a)(iii), the Underwriter is authorized to use the information with respect to the final terms of the offering in communications orally conveying information relating to the offering to investors. Any such free writing prospectus consented to by the Company, the financial conditionSelling Stockholders and the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company and each Selling Stockholder represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, results and has complied and will comply with the requirements of operationsRule 433 applicable to any Permitted Free Writing Prospectus, businessincluding timely filing with the Commission where required, properties, assets or liabilities legending and record keeping.
(xi) During the period of 30 days from the date of the CompanyProspectus, the Company will not, directly or the offering of the Sharesindirectly, without the prior written consent of the RepresentativesUnderwriter, (a) issue, sell, offer or agree to sell, grant any option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a “put equivalent position” (within the meaning of Rule 16a-1(h) under the 1934 Act), enter into any swap, derivative transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or other consideration) or otherwise dispose of, any Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or interest therein of the Company or of any of its subsidiaries, other than the Company’s issuance of Common Stock (i) upon the exercise of presently outstanding options, (ii) in connection with acquisitions by the Company or a subsidiary, and (iii) in connection with the grant, assignment and exercise of options under, or the issuance and sale of shares pursuant to, the New Residential Investment Corp. Nonqualified Stock Option and Incentive Award Plan, as amended from time to time (the “New Residential Award Plan”), as in effect on the date hereof or (b) file a registration statement under the 1933 Act registering shares of Common Stock (or any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest in shares of Common Stock, except for a registration statement or prospectus supplement with respect to shares of Common Stock issuable under the New Residential Award Plan or other presently outstanding options.
(kxii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of list the Shares on the Nasdaq National MarketNYSE.
(lxiii) Except pursuant The Company will use its best efforts to meet the exercise requirements to qualify as a REIT under the Code for each of stock options existing prior to its taxable years for so long as the execution Board of this Agreement or as contemplated hereby or by the Prospectus, Directors of the Company and deems it in the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares best interests of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply ’s shareholders to any successor of the Company, including without limitation, any entity into which the Company might consolidate or mergeremain so qualified.
Appears in 1 contract
Samples: Underwriting Agreement (New Residential Investment Corp.)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by in this Agreement, the provisions hereof International Underwriting Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe delivered by an Underwriter, International Manager or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of counsel for the UnderwritersUnderwriters or the International Managers, 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 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 Exchange Act. 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.
(viii) No offering, sale, 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) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company will furnish to the Representatives otherwise than hereunder or other than (a) concurrently with furnishing the issuance of such reports to its stockholdersCommon Stock upon the exercise of presently outstanding stock options, statements (b) the grant of income of the Company for each quarter in the form furnished to options under the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate 1998 Stock Option Plan or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheldBT Alex. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.Xxxxx
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectiveness, to prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares Act, as 11 12 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 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 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.
(viii) No offering, sale, 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) will be made for a period of 180 days after the date of this Agreement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.indirectly,
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or information and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement(including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Shares, 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 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 Exchange Act. 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.
(viii) No offering, sale, 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) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company will furnish to otherwise than hereunder or with the Representatives (a) concurrently with furnishing prior written consent of such reports to its stockholders, statements of income of Alex. Xxxxx & Sons Incorporated except that the Company for each quarter in may, without such consent, issue shares upon the form furnished to exercise of options outstanding on the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidateddate hereof.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(iix) The Company will use obtain the net proceeds from approval of The Nasdaq Stock Market in connection with the sale issuance and listing of the Shares substantially in applicable portion of the manner set forth in the Prospectus under the caption "Use of ProceedsShares."
(jx) Other than as permitted by the Act The Company has caused each executive officer and the Rules, the Company director and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and Company to furnish to you, on or prior to the Closing Date ordate of this agreement, if applicablea letter or letters, in form and substance satisfactory to the Option Closing Date will Underwriters, pursuant to which each such person shall agree not issue to offer, sell, sell short or otherwise dispose of any press releases shares of Common Stock of the Company or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities 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 offering registration for the offer or sale of any of the Sharesforegoing (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, without directly or indirectly, except with the prior written consent of the RepresentativesAlex. Xxxxx & Sons Incorporated ("Lockup Agreements").
(kxi) 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 0000 Xxx.
(xii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiii) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders severally and not jointly covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of 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 Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Stockholder has the right to direct the disposition of) will not, be made for a period of ninety (90) 90 days after the Effective Date date of the Registration Statementthis Agreement, offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSAlex. 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, which consent each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date 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).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective 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.
(gvii) For a period of three years from Prior to the date of this AgreementClosing Date, the Company will furnish to the Representatives (a) concurrently with furnishing Underwriters, as soon as they have been prepared by or are available to the Company, a copy of such reports to its stockholders, any unaudited interim financial statements of income of the Company for each quarter in the form furnished any period subsequent to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of period covered by the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and most recent financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm appearing in writing, that the Registration Statement and any amendments shall have become effectivethe Prospectus.
(viii) No offering, sale, 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) will be made for a period beginning on the date hereof and continuing to, and including, the date that is 180 days after the date of the final Prospectus relating to the offering contemplated under this Agreement (the “Lock-Up Period”), directly or indirectly, by the Company otherwise than hereunder or with the prior written consent of Jefferies, except (i) The Company will use the net proceeds from the sale filing of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus a Registration Statement on Form S-8 or offering materials Form S-8/S-3 in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases an employee stock compensation plan or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities agreement of the Company, (ii) issuances of Common Stock of the Company pursuant to the conversion or exchange of convertible or exchangeable securities or the offering exercise of warrants or non-employee related options, in each case outstanding on the SharesClosing Date, (iii) grants of employee stock options, and the exercise of such options, pursuant to the terms of a plan or instrument disclosed in the Prospectus and (iv) the issuance of up to [ ] shares of Common Stock issued as consideration in connection with an acquisition or acquisitions; provided, however, that with respect to (iv) above, prior to the issuance of such shares the recipients of such shares shall sign an agreement in form and substance reasonably satisfactory to Jefferies under which each such recipient agrees for the remaining Lock-Up Period not offer, sell, sell short or otherwise dispose of any such shares without the prior written consent of the RepresentativesJefferies.
(kix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each officer and director and Selling Stockholder of the Company to furnish to you, on or prior to the date of this agreement, a letter or letters, in form and substance satisfactory to the 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 to which such person has the right to direct the disposition of) for a period of 180 days after the date of the final Prospectus relating to the offering contemplated under this Agreement, directly or indirectly (“Lockup Agreements”), except with the prior written consent of Jefferies.
(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.
(xiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant 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) 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 Stockholders covenants and agrees with the several Underwriters that:
(i) Each Selling Stockholder shall have delivered to the exercise of stock options existing Representatives on or prior to the execution date of this Agreement or as contemplated hereby or by the ProspectusLockup Agreement referenced in Section 4(a)(x) hereof.
(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, the Company and each of the Selling Stockholders 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 Stockholder will notnot 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.
(c) Each Selling Stockholder agrees (i) for a period of ninety (90) 180 days after the Effective Date date of the final Prospectus related to the offering contemplated under this Agreement, not to exercise or attempt to exercise any rights such Selling Stockholder may have to register, or cause to be registered, under applicable securities laws, its securities of the Company and (ii) that the registration of such Selling Stockholder’s Shares under the Registration Statement satisfies in full the Company’s obligation to include securities of such Selling Stockholder under such Registration Statement. If, offer during the period of time as in the opinion of counsel for the Underwriters a prospectus is required by law to sellbe delivered in connection with sales by an Underwriter or a dealer, contract there is any change in the information referred to sellin Section 1(b)(iv) above, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent Selling Stockholder will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of immediately notify the Company, including without limitation, any entity into which the Company might consolidate or mergeAttorneys and the Underwriters in writing of such change.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), with each of the several Underwriters thatagrees as follows:
(ai) The Company will use its best efforts to cause the Registration Statement and any amendment thereto, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective and as promptly as possible; the Company will notuse its best efforts to cause any abbreviated registration statement pursuant to Rule 462(b) of the Rules as may be required subsequent to the date the Registration Statement is declared effective to become effective as promptly as possible; the Company will notify you, either before promptly after it shall receive notice thereof, of the time when the Registration Statement, any subsequent amendment to the Registration Statement or after effectiveness, file any amendment thereto abbreviated registration statement has become effective or any supplement to the Prospectus has been filed; if the Company omitted information from the Registration Statement at the time it was originally declared effective in reliance upon Rule 430A(a) of the Rules, the Company will provide evidence satisfactory to you that the Prospectus contains such information and has been filed, within the time period prescribed, with the Commission pursuant to subparagraph (including 1) or (4) of Rule 424(b) of the Rules or as part of a prospectus filed post- effective amendment to such Registration Statement as originally declared effective which is declared effective by the Commission; if the Company files a term sheet pursuant to Rule 434 of the Rules, the Company will provide evidence satisfactory to you that the Prospectus and term sheet meeting the requirements of Rule 434(b) or (c), as applicable, of the Rules, have been filed, within the time period prescribed, with the Commission pursuant to subparagraph (7) of Rule 424(b) which differs from of the Rules; if for any reason the filing of the final form of Prospectus is required under Rule 424(b)(3) of the Rules, it will provide evidence satisfactory to you that the Prospectus on file at contains such information and has been filed with the Commission within the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunder.
(b) The Company period prescribed; it will advise the Representatives notify you promptly of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order suspending for the effectiveness amending or supplementing of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purposeadditional information; promptly upon your request, or comparable action taken or initiated by any Other Securities Regulator, and the Company it will use its 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.
(c) The Company will use its reasonable efforts with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; PROVIDED, HOWEVER, 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 so qualified or required to file such a consent. The Company will, from time to time, prepare and file such statementswith the Commission any amendments or supplements to the Registration Statement or Prospectus which, reportsin the reasonable opinion of counsel for the several Underwriters, and other documents, as are or may be required to continue such qualifications necessary or advisable in effect for so long a period as the Representatives may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect connection with the distribution of the Shares as many copies by the Underwriters; it will promptly prepare and file with the Commission, and promptly notify you of the Prospectus in final formfiling of, any amendments or as thereafter amended or supplemented, as the Representatives may reasonably request. The Company will deliver supplements to each of the Representatives at or before the Closing Date, one (1) manually signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith and will deliver or Prospectus which may be necessary to correct any statements or omissions, if, at any time when a prospectus relating to the Representatives such number of copies of Shares is required to be delivered under the Registration Statement, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur have occurred as a result of which, in the judgment of the Company or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement which the Prospectus or any other prospectus relating to the Shares as then in order effect would include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading; in case any Underwriter is required to deliver a prospectus nine (9) months or more after the effective date of the Registration Statement in connection with the sale of the Shares, orit will prepare promptly upon request, but at the expense of such Underwriter, such amendment or amendments to the Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Securities Act; and it will file no amendment or supplement to the Registration Statement or Prospectus which shall not previously have been submitted to you a reasonable time prior to the proposed filing thereof or to which you shall reasonably object in writing, subject, however, to compliance with the Securities Act and the Rules and the provisions of this Agreement. The Company shall use its best efforts to prevent the issuance of any stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(ii) The Company will advise you, promptly after it is necessary shall receive notice or obtain knowledge of the issuance of any stop order by the Commission suspending the effectiveness of the Registration Statement or of the initiation or threat of any proceeding for that purpose; and it will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued
(iii) If, at any time when a prospectus relating to the Shares is required to be delivered under the Securities Act and the Rules, any event occurs as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Prospectus to comply with any law or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange ActRules, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, shall prepare and file with the Commission and any appropriate Other Securities Regulator Commission, subject to this Section 7, an appropriate amendment or supplement to the Prospectus which shall correct such statement or file omission or an amendment which shall effect such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the lawcompliance.
(fiv) The Company will shall make generally available to its security holders in and to the manner contemplated by Rule 158(b) under the Act, Representatives as soon as it is practicable to do sopracticable, but in any event not later than 45 days after the 90th day after end of the 12-month period beginning at the end of the fiscal quarter first occurring one year after of the Company during which the Effective DateDate occurs (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings earning statement in reasonable detail(which need not be audited) of the Company, covering a period of at least twelve consecutive months beginning after the Effective Datesuch 12-month period, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Securities Act and will advise you in writing when such statement has been so made availableor Rule 158 of the Rules.
(gv) For The Company will furnish to you, as soon as available, and, in the case of the Prospectus and any term sheet or abbreviated term sheet under Rule 434, in no event later than the first (1st) full business day following the first day that Shares are traded, copies of the Registration Statement (two of which will be signed and which will include all exhibits), each Preliminary Prospectus, the Prospectus and any amendments or supplements to such documents, including any prospectus prepared to permit compliance with Section 10(a)(3) of the Securities Act, all in such quantities as you may from time to time reasonably request. Notwithstanding the foregoing, if the Representatives, on behalf of the several Underwriters, shall agree to the utilization of Rule 434 of the Rules, the Company shall provide to you copies of a Preliminary Prospectus updated in all respects through the date specified by you in such quantities as you may from time to time reasonably request.
(vi) The Company will use its best efforts to cooperate with the Representatives and counsel for the Underwriters in endeavoring to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the Representatives may designate and to continue such qualifications in effect for so long as may be required for purposes of the distribution of the Shares, except that the Company shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction in which it is not otherwise required to be so qualified or to so execute a general consent to service of process. In each jurisdiction in which the Shares shall have been qualified as above provided, the Company will make and file such statements and reports in each year as are or may be required by the laws of such jurisdiction.
(vii) During a period of three five (5) years from after the date of this Agreementhereof, the Company will furnish to its stockholders as soon as practicable after the Representatives end of each respective period, annual reports (aincluding financial statements audited by independent certified public accountants) and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to the Representatives, and to each other of the several Underwriters hereunder, upon request (i) concurrently with furnishing of such reports to its stockholders, statements of income operations of the Company for each quarter of the first three (3) quarters in the form furnished to the Company's stockholders; , (bii) concurrently with furnishing to its stockholders, a balance sheet of the Company as at of the end of such fiscal year, together with statements of earningsoperations, of stockholders' equity equity, and of cash flow flows of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent certified public accountants; , (ciii) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; stockholders and (div) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; , any securities exchange or the National Association of Securities Dealers, Inc. (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request"NASD"). During such five (5) year period, if the Company shall have active subsidiaries subsidiaries, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) subsidiaries which is not so consolidated.
(hviii) Promptly after Without the Company is advised thereof, it will advise prior written consent of the Representatives, and confirm in writingfor a period of 90 days after the date of this Agreement, that the Registration Statement and Company shall not issue, sell or register with the Commission, (except for any amendments shall have become effective.
registration on Form S-8 or on any successor form) or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into or exercisable or exchangeable for equity securities of the Company), except for (i) The Company will use the net proceeds from the sale issuance of the Shares substantially pursuant to the Registration Statement, (ii) the issuance of shares or grant of awards pursuant to the Company's existing stock option plans, stock purchase plans or bonus plans, (iii) shares or warrants granted to consultants or other parties in the manner set forth in the Prospectus under the caption "Use of Proceeds."connection with content acquisition or other commercial or strategic transactions,
(jiv) Other not more than as permitted by four million shares issued in connection with asset or company acquisition agreements. In the Act and event that during this period, (i) any shares are issued pursuant to the RulesCompany's existing stock option plan or bonus plan or (ii) any registration is effected on Form S-8 or on any successor form, the Company and shall obtain the Selling Stockholders written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Sharesnot, without the prior written consent of the Representatives, offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for any shares of Common Stock) owned by such person.
(kix) The On or before completion of this offering, the Company will maintain a transfer agent and, if necessary shall make all filings required under the jurisdiction of incorporation of the Company, a registrar for its common stock applicable securities laws and will use its best efforts to maintain the listing of the Shares on by the Nasdaq National MarketMarket (including any required registration under the Exchange Act).
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Covenants of the Company and the Selling Stockholders. The Company covenants Offerors jointly and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), severally agree with each of the several Underwriters thatas follows:
(a) The Company Offerors will use its their best efforts to cause the Registration Statement and any amendment thereof, if not effective at the time and date that this Agreement is executed and delivered by the parties hereto, to become effective as promptly as possible; they will notify the Representative, promptly after they shall receive notice thereof, of the time when the Registration Statement or any subsequent amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed; if the Offerors omitted information from the Registration Statement at the time it was originally declared effective in reliance upon Rule 430A(a), the Offerors will provide evidence satisfactory to the Representative that the Prospectus contains such information and has been filed, within the time period prescribed, with the Commission pursuant to subparagraph (1) or (4) of Rule 424(b) of the Rules and Regulations under the Act or as part of a post-effective amendment to such Registration Statement as originally declared effective which is declared effective by the Commission; if for any reason the filing of the final form of Prospectus is required under Rule 424(b)(3) of the Rules and Regulations under the Act, they will notprovide evidence satisfactory to the Representative that the Prospectus contains such information and has been filed with the Commission within the time period prescribed; they will notify the Representative promptly of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; promptly upon the Representative's request, either before they will prepare and file with the Commission any amendments or supplements to the Registration Statement or Prospectus which, in the opinion of counsel for the Underwriters ("Underwriters' Counsel"), may be necessary or advisable so as to comply with all applicable laws and regulations (including, without limitation, Section 11 under the Act and Rule 10b-5 under the Exchange Act) in connection with the distribution of the Designated Preferred Securities by the Underwriters; they will promptly prepare and file 14 with the Commission, and promptly notify the Representative of the filing of, any amendments or supplements to the Registration Statement or Prospectus which may be necessary to correct any statements or omissions, if, at any time when a prospectus relating to the Designated Preferred Securities is required to be delivered under the Act, any event shall have occurred as a result of which the Prospectus or any other prospectus relating to the Designated Preferred Securities as then in effect would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; in case any Underwriter is required so as to comply with all applicable laws and regulations (including, without limitation, Section 11 under the Act and Rule 10b-5 under the Exchange Act) to deliver a prospectus nine months or more after effectivenessthe effective date of the Registration Statement in connection with the sale of the Designated Preferred Securities, they will prepare promptly upon request, but at the expense of the Underwriters, such amendment or amendments to the Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act; they will file any no amendment thereto or supplement to the Registration Statement or Prospectus (including a prospectus other than any document required to be filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (Athat upon filing is deemed incorporated therein by reference) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus of which the Representatives shall not previously have been advised and furnished with submitted to the Representative a copy reasonable time prior to the proposed filing thereof or to which the Representatives you shall have reasonably objected object in writing or which is not in compliance with the Act and the Rules and Regulations under the Act and until the distribution of the Designated Preferred Securities pursuant to the Prospectus has been completed, the Offerors will furnish to the Representative at or Rules prior to the filing thereof a copy of any document that upon filing is deemed to be incorporated by reference in the Registration Statement or the Exchange Act or the rules and regulations thereunderProspectus.
(b) The Company Offerors will advise the Representatives Representative, promptly of any request of the Commission after they shall receive notice or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional informationobtain knowledge thereof, or of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of the Registration Statement or the use of the Prospectus initiation or of the institution threat of any proceedings proceeding for that purpose, or comparable action taken or initiated by any Other Securities Regulator, ; and the Company they will promptly use its reasonable their best efforts to prevent the issuance of any stop order or to obtain their withdrawal at the earliest possible moment if such stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, if should be issued.
(c) The Company Offerors will use its reasonable their best efforts with the Representatives in endeavoring to qualify the Shares Designated Preferred Securities for offering and sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives Representative may reasonably designate, designate and will make to continue such applications, file such documents, and furnish such information qualifications in effect for so long as may be reasonably required for the purposes of the distribution of the Designated Preferred Securities, except that purpose; PROVIDED, HOWEVER, the Company either Offeror shall not be required in connection therewith or as a condition thereof to qualify as a foreign corporation or to file execute a general consent to service of process in any jurisdiction. In each jurisdiction where it is not so in which the Designated Preferred Securities shall have been qualified or required to file such a consent. The Company willas above provided, from time to time, prepare the Offerors will make and file such statements, reports, statements and other documents, reports in each year as are or may be reasonably required to continue by the laws of such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Sharesjurisdiction.
(d) The Company Offerors will deliver tofurnish to the Representative, or upon as soon as available, copies of the order ofRegistration Statement (including exhibits, with the Commission's confirmation of filing), each Preliminary Prospectus, the RepresentativesProspectus and any amendment or supplements to such documents, from time including any prospectus prepared to timepermit compliance with Section 10(a)(3) of the Act, all in such quantities as many copies of any Preliminary Prospectus or the Prospectus as the Representatives you may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof and the Prospectus. If, during the period necessary to effect the distribution of the Shares, any event shall occur as a result of which, in the judgment of the Company or in the opinion of counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company Offerors will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, their securityholders as soon as it is practicable to do sopracticable, but in any event not later than the 90th 45th day after following the end of the fiscal quarter first occurring one year after the Effective Datefirst anniversary of the effective date of the Registration Statement, an earnings statement (which will be in reasonable detail, covering a period of at least twelve consecutive months beginning after detail but need not be audited) complying with the Effective Date, which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Act and will advise you in writing when such statement has been so made availablecovering a twelve-month period beginning after the effective date of the Registration Statement.
(gf) For a period of three five years from the date of this Agreementhereof, the Company will Offerors shall furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, Representative copies of all reports and communications (financial or otherotherwise) mailed furnished by the Offerors to stockholders; (d) the holders of the Designated Preferred Securities as soon as they are availablea class, copies of all reports and financial statements filed with or furnished to the Commission or filed with any national securities exchange or the Commission; (e) every press release which was released or prepared by the Company; NASDAQ-NM and (f) any additional such other documents, reports and information of a public nature concerning the Company or its business which you and financial conditions of the Offerors as the Representative may reasonably request. During such period, if five year period the Company shall have active subsidiaries the foregoing Offerors' financial statements shall be on a consolidated basis to the extent that the accounts of the Company Offerors and its subsidiaries the Subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) Subsidiary which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(ig) The Company Offerors will use apply the net proceeds from the sale of the Shares substantially Designated Preferred Securities being sold by it in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by " in the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the RepresentativesProspectus.
(kh) The Company Offerors will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, and a registrar (which may be the same entity as the transfer agent) for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketPreferred Securities.
(li) Except pursuant If at any time during the 90-day period after the Registration Statement becomes effective, any publication or event relating to or affecting either Offeror shall occur as a result of which in your opinion the market price of the Preferred Securities has been or is likely to be materially affected (regardless of whether such publication or event necessitates a supplement to or amendment of the Prospectus), the Offerors will, after written notice from the Representative advising the Offerors to the exercise effect set forth above, forthwith prepare, consult with the Representative concerning the substance of stock options existing prior and disseminate a press release or other public statement, reasonably satisfactory to the execution Representative, responding to or commenting on such publication or event, consistent with past practice.
(j) Unless you have declined to proceed with the offering contemplated hereby, for a period ending 180 days from the date of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders Offerors will not, for a period of ninety (90) days after the Effective Date of the Registration Statementwithout your prior written consent, directly or indirectly, offer for sale, sell or agree to sell, contract to sell, sell or otherwise dispose of any shares Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Company's common stock Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into shares of or exchangeable for or that represent the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply right to receive any successor of the Company, including without limitation, any entity into which the Company might consolidate such beneficial interest or mergesubstantially similar securities.
Appears in 1 contract
Samples: Underwriting Agreement (Matrix Bancorp Capital Trust I)
Covenants of the Company and the Selling Stockholders. (a) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(ai) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, and (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunderRegulations.
(bii) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(ciii) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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, 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.
(div) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually two signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(ev) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(fvi) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not no later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective date of the Registration Statement, which earnings earning 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.
(gvii) For The Company will, for a period of three 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 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 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.
(viii) No offering, sale, 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) will be made for a period of 90 days after the date of this Agreement, directly or indirectly, by the Company will furnish otherwise than hereunder or with the prior written consent of Alex. Xxxxx & Sons Incorporated except that the Company may, without such consent, issue shares upon exercise of options issued pursuant to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of 1996 Stock Option Plan or the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated1996 Employee Stock Purchase Plan.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.
(iix) The Company will use its best efforts to list, subject to notice of issuance, the Shares on the Nasdaq National Market.
(x) The Company has caused each executive officer and each Selling Stockholder of the Company's outstanding capital stock to furnish to you, on or prior to the date of this Agreement, a letter or letters, in form and substance satisfactory to the 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 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. Xxxxx & Sons Incorporated ("Lockup Agreements").
(xi) The Company shall apply the net proceeds from of its sale of the Shares substantially as set forth in the Prospectus and shall file such reports with the Commission with respect to the sale of the Shares substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jxii) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to in such a manner as would require the Closing Date or, if applicable, the Option Closing Date will not issue Company or any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the CompanySubsidiaries to register as an investment company under the Investment Company Act of 1940, or as amended (the offering of the Shares, without the prior written consent of the Representatives"1940 Act").
(kxiii) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(lxiv) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and stabilization or manipulation of the price of any securities of the Company.
(b) Each of the Selling Stockholders covenants and agrees with the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any shares of 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 Stockholder or request the registration for the offer or sale of any of the foregoing (or as to which the Selling Stockholder has the right to direct the disposition of) will not, be made for a period of ninety (90) 90 days after the Effective Date date of the Registration Statementthis Agreement, offer to selldirectly or indirectly, contract to sell, sell by such Selling Stockholder otherwise than hereunder or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without with the prior written consent of BRSAlex. 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, which consent each of the Selling Stockholders agrees to deliver to you prior to or at the Closing Date 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).
(iii) Such Selling Stockholder will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be unreasonably withheld. The foregoing covenants and agreements shall apply expected to constitute, the stabilization or manipulation of the price of any successor securities of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Splash Technology Holdings Inc)
Covenants of the Company and the Selling Stockholders. (A) The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and with respect only to paragraphs (j) and (l), agrees with each of the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration Statement Statement, if not effective at the time of execution of this Agreement, and any amendments thereto, to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statementas promptly as possible. If required, the Preliminary Prospectus or the Prospectus 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 Act or Rules or the Exchange Act or the rules and regulations thereunder.
(b) The Company will advise the Representatives promptly of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to file the Prospectus or for any additional information, Term Sheet that constitutes a part thereof and any amendment or of the issuance by supplement thereto with the Commission of any stop order suspending in the effectiveness of manner and within the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated time period required by any Other Securities Regulator, Rules 434 and the Company will use its 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.
(c424(b) The Company will use its reasonable efforts with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as Act. During any time when a prospectus relating to the Representatives may reasonably designate, and will make such applications, file such documents, and furnish such information as may Securities is required to be reasonably required for that purpose; PROVIDED, HOWEVERdelivered under the Act, 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 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.
(di) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time during the period necessary to effect the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually signed copy 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, but without exhibits, and of all amendments thereto, as the Representatives may reasonably request.
(e) During the time necessary to effect the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now Act and hereafter amended, the rules and by regulations of the Rules, as from time Commission thereunder to time in force, so far as is the extent necessary to permit the continuance of sales of or dealings in the Shares as contemplated by Securities in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (ii) will not file with the Commission the prospectus, Term Sheet or the amendment referred to in the second sentence of Section 2(A)(a) hereof, any amendment or supplement to such Prospectus, Term Sheet or any amendment to the Registration Statement or any Rule 462(b) Registration Statement of which the Representatives previously have been advised and furnished with a copy for a reasonable period of time prior to the proposed filing and as to which filing the Representatives shall not have given their consent. IfThe Company will prepare and file with the Commission, during in accordance with the period necessary to effect the distribution rules and regulations of the SharesCommission, any event shall occur as a result of which, in promptly upon request by the judgment of the Company Representatives or in the opinion of counsel for the Underwriters, it becomes necessary any amendments 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus or file such document (at the expense of the Company) so that the Prospectus as so amended or supplemented will not, in light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than the 90th day after the end of the fiscal quarter first occurring one year after the Effective Date, an earnings statement in reasonable detail, covering a period of at least twelve consecutive months beginning after the Effective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and will advise you in writing when such statement has been so made available.
(g) For a period of three years from the date of this Agreement, the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any or amendments shall have become effective.
(i) The Company will use the net proceeds from the sale of the Shares substantially in the manner set forth in the Prospectus under the caption "Use of Proceeds."
(j) Other than as permitted by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and sale of the Shares and prior supplements to the Closing Date or, if applicable, the Option Closing Date will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the Company, or the offering of the Shares, without the prior written consent of the Representatives.
(k) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market.
(l) Except pursuant to the exercise of stock options existing prior to the execution of this Agreement or as contemplated hereby or by the Prospectus, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Mercury Computer Systems Inc)
Covenants of the Company and the Selling Stockholders. The Company covenants and agrees, and the Selling Stockholders covenant and agree, each for himself and agrees with respect only to paragraphs (j) and (l), with each of the several Underwriters that:
(a) 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 will notRegulations is followed, either before or after effectivenessto prepare and timely file with the Commission under Rule 424(b) of the 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 and Regulations, (B) not file any amendment thereto to the Registration Statement or supplement to the Prospectus (including a prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) or file any documents under the Exchange Act before the earlier to occur of (A) the 35th day following the Effective Date or (B) the closing date of the Underwriters' purchase of the Option Shares if such document would be deemed to be incorporated by reference into the Registration Statement, the Preliminary Prospectus or the Prospectus 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 Act Rules and Regulations and (C) file on a timely basis all reports and any definitive proxy or Rules or information statements required to be filed by the Exchange Act or Company with the rules Commission subsequent to the date of the Prospectus and regulations thereunderprior to the termination of the offering of the Shares by the Underwriters.
(b) 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 or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the . The Company will use its reasonable 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.
(c) The Company will use its reasonable efforts cooperate with the Representatives in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Representatives may reasonably designate, 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, HOWEVER, 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.
(d) The Company will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus or the Prospectus as the Representatives may reasonably request. The Company will deliver to, or upon the order of, the Representatives, on the Effective Date and thereafter from time to time Representatives during the period necessary to effect when delivery of a Prospectus is required under the distribution of the Shares 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 each of the Representatives at or before the Closing Date, one (1) manually four signed copy copies of the Registration Statement and all amendments thereto including all exhibits filed therewith therewith, and will deliver to the Representatives such number of copies of the Registration Statement, but without exhibitsStatement (including such number of copies of the exhibits filed therewith that may reasonably be requested), and of all amendments thereto, as the Representatives may reasonably request.
(e) During The Company will comply with the time necessary 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 effect permit the completion of the distribution of the Shares, the Company shall comply with all requirements imposed upon it by the Act, as now and hereafter amended, and by the Rules, as from time to time in force, so far as is necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof in this Agreement and the Prospectus. If, If during the period necessary in which a prospectus is required by law to effect the distribution of the Sharesbe 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 counsel for 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 or to file under the Exchange Act any document which would be deemed to be incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Actlaw, the Company promptly will notify the Representatives and, subject to the Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the Registration Statement or supplement to the Prospectus or file such document (at the expense of the Company) 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.
(f) The Company will make generally available to its security holders in the manner contemplated by Rule 158(b) under the Actholders, as soon as it is practicable to do so, but in any event not later than the 90th day 15 months after the end effective date of the fiscal quarter first occurring one year after the Effective DateRegistration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the Effective Dateeffective 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.
(g) For The Company will, for a period of three 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 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 Exchange Act. 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.
(h) Except for the distribution of the Company's shares by Sylvan Learning Systems, Inc. to its shareholders, no offering, sale, 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) will be made for a period of 180 days after the date of this Agreement, directly or indirectly, by the Company will furnish to the Representatives (a) concurrently with furnishing of such reports to its stockholders, statements of income of the Company for each quarter in the form furnished to the Company's stockholders; (b) concurrently with furnishing to its stockholders, a balance sheet of the Company as at the end of such fiscal year, together with statements of earnings, stockholders' equity and cash flow of the Company for such fiscal year, all in reasonable detail and accompanied by a copy of the certificate otherwise than hereunder or report thereon of independent public accountants; (c) as soon as they are available, copies of all reports (financial or other) mailed to stockholders; (d) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission; (e) every press release which was released or prepared by the Company; and (f) any additional information prior written consent of a public nature concerning the Company or its business which you may reasonably request. During such period, if the Company shall have active subsidiaries the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company and its subsidiaries are consolidated, and shall be accompanied by similar financial statements for any significant subsidiary (as defined by the Act) which is not so consolidated.
(h) Promptly after the Company is advised thereof, it will advise the Representatives, and confirm in writing, that the Registration Statement and any amendments shall have become effective.Deutsche Bank Securities Inc.
(i) The Company will use its best efforts to list, subject to notice of issuance, the Shares on The Nasdaq Stock Market.
(j) The Company will not issue any stock options pursuant to its 1999 Stock Incentive Plan that are exercisable or saleable (including the underlying Common Stock) during the 180 day period following the date of this Agreement, unless the Company first obtains a letter or letters, in form and substance satisfactory to the Underwriters, pursuant to which each person who is to receive stock options from the Company, 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, other than sales of Common Stock contemplated by this Agreement, charitable contributions or certain transfers without consideration, 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 Deutsche Bank Securities Inc. ("Lockup Agreements").
(k) The Company shall apply the net proceeds from 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 substantially and the application of the proceeds therefrom as may be required in the manner set forth in the Prospectus accordance with Rule 463 under the caption "Use of ProceedsAct."
(jl) Other than as permitted The Company shall not invest, or otherwise use the proceeds received by the Act and the Rules, the Company and the Selling Stockholders will not distribute any prospectus or offering materials in connection with the offering and from its sale of the Shares and prior to in such a manner as would require the Closing Date or, if applicable, the Option Closing Date will not issue Company or any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company, the financial condition, results of operations, business, properties, assets or liabilities of the CompanySubsidiaries to register as an investment company under the Investment Company Act of 1940, or as amended (the offering of the Shares, without the prior written consent of the Representatives"1940 Act").
(km) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for its common stock and will use its best efforts to maintain the listing of the Shares on the Nasdaq National MarketCommon Stock.
(ln) Except pursuant The Company will not take, directly or indirectly, any action designed to the exercise of stock options existing prior cause or result in, or that has constituted or might reasonably be expected to the execution of this Agreement or as contemplated hereby or by the Prospectusconstitute, the Company and the Selling Stockholders will not, for a period of ninety (90) days after the Effective Date stabilization or manipulation of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose price of any shares securities of the Company's common stock or securities convertible into shares of the Company's common stock without the prior written consent of BRS, which consent will not be unreasonably withheld. The foregoing covenants and agreements shall apply to any successor of the Company, including without limitation, any entity into which the Company might consolidate or merge.
Appears in 1 contract
